EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO THE FIRST
AMENDED AND RESTATED PURCHASE AGREEMENT, dated as of November 3, 2003 (the
"Receivables Purchase Assignment and Assumption Agreement") among Sears, Xxxxxxx
and Co., a New York corporation (the "Transferring Seller"), SRFG, Inc., a
Delaware corporation (the "Transferring Purchaser"), Citi Cards South Dakota
Acceptance Corp., a Delaware corporation (the "New Seller") and Citi Omni-S
Finance LLC, a Delaware limited liability company (the "New Purchaser").
RECITALS
WHEREAS, the Transferring Seller and the Transferring
Purchaser are parties to the First Amended and Restated Purchase Agreement,
dated as of July 31, 1994, as amended by Amendment No. 1 to the First Amended
and Restated Purchase Agreement, dated as of December 21, 1995, Amendment No. 2
to the First Amended and Restated Purchase Agreement, dated as of July 20, 2001
and Amendment No. 3 to the First Amended and Restated Purchase Agreement, dated
as of November 3, 2003 (as so amended, the "Receivables Purchase Agreement").
WHEREAS, the Transferring Seller, the Transferring Purchaser,
certain of their affiliates and Citicorp, a Delaware corporation ("Citicorp")
are parties to a Purchase, Sale and Servicing Transfer Agreement (the "Purchase
Agreement"), dated as of July 15, 2003, as amended from time to time according
to its terms.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Seller, Citicorp and the New Seller are parties to a Xxxx of Sale
and Assignment and Assumption Agreement (the "Seller Xxxx of Sale"), dated as of
the date first set forth above, whereby the Transferring Seller is selling,
assigning, transferring and conveying certain assets of the Transferring Seller
to the New Seller.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Purchaser, Citicorp and the New Purchaser are parties to a Xxxx of
Sale and Assignment and Assumption Agreement (the "Purchaser Xxxx of Sale"),
dated as of the date first set forth above, whereby the Transferring Purchaser
is selling, assigning, transferring and conveying certain assets of the
Transferring Purchaser to the New Purchaser.
WHEREAS, the Transferring Seller intends to assign to the New
Seller all of its right, title and interest and delegate all of its duties and
obligations that are incurred or accrue on or after the date hereof under the
Receivables Purchase Agreement.
WHEREAS, the Transferring Purchaser intends to assign to the
New Purchaser all of its right, title and interest and delegate all of its
duties and obligations that are incurred or accrue on or after the date hereof
under the Receivables Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do covenant and agree as follows:
SECTION 1. Unless otherwise defined in this Receivables
Purchase Assignment and Assumption Agreement, all defined terms used herein,
including the Recitals hereto, shall have the meanings ascribed to such terms in
the Receivables Purchase Agreement.
SECTION 2. (a) The Transferring Seller does hereby assign all
of its right, title and interest and delegate all of its duties and obligations
that are incurred or accrue on or after the date hereof, in, to and under the
Receivables Purchase Agreement to the New Seller; provided that to the extent
that any duty or obligation of the Transferring Seller under the Receivables
Purchase Agreement is a Retained Liability (as defined in the Purchase
Agreement), such duties or obligations are not hereby conveyed to the New
Seller, but remain with the Transferring Seller.
(b) The New Seller accepts all such assigned right, title and
interest, assumes all such duties and obligations (excluding any Retained
Liabilities) and agrees that it shall be substituted for the Transferring Seller
under the Receivables Purchase Agreement.
(c) The Transferring Purchaser and the New Purchaser hereby
severally (i) acknowledge and consent to the assignment and delegation made
above, (ii) acknowledge and agree that as of the date hereof, the New Seller has
been substituted for the Transferring Seller under the Receivables Purchase
Agreement and (iii) release the Transferring Seller from all of its duties and
obligations under the Receivables Purchase Agreement (excluding any Retained
Liabilities and any duties or obligations that were incurred or accrued prior to
the date hereof).
SECTION 3. (a) The Transferring Purchaser does hereby assign
all of its right, title and interest and delegate all of its duties and
obligations that are incurred or accrue on or after the date hereof, in, to and
under the Receivables Purchase Agreement to the New Purchaser; provided that to
the extent that any duty or obligation of the Transferring Purchaser under the
Receivables Purchase Agreement is a Retained Liability (as defined in the
Purchase Agreement), such duties or obligations are not hereby conveyed to the
New Purchaser, but remain with the Transferring Purchaser.
(b) The New Purchaser accepts all such assigned right, title
and interest, assumes all such duties and obligations (excluding any Retained
Liabilities) and agrees that it shall be substituted for the Transferring
Purchaser under the Receivables Purchase Agreement.
(c) The Transferring Seller and the New Seller hereby
severally (i) acknowledge and consent to the assignment and delegation made
above, (ii) acknowledge and agree that as of the date hereto, the New Purchaser
has been substituted for the Transferring Purchaser under the Receivables
Purchase Agreement and (iii) release the Transferring Purchaser from all of its
duties and obligations under the Receivables Purchase Agreement (excluding any
Retained Liabilities and any duties or obligations that were incurred or accrued
prior to the date hereof).
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SECTION 4. (a) The New Seller hereby acknowledges that the
Transferring Seller has transferred to the New Seller any right, title and
interest retained by the Transferring Seller in and to (i) the Receivables
(other than the Contributed Receivables) existing as of the Cut-Off Date (or
with respect to Additional Accounts, as of the applicable Additional Account
Cut-Off Date) and thereafter created, all monies due or to become due with
respect thereto and all proceeds (as defined in Article 9 of the applicable UCC)
of such Receivables and Coverage Proceeds, if any, relating thereto and (ii)
Interchange existing as of July 20, 2001 and thereafter created, all monies due
or to become due with respect thereto and all proceeds (as defined in Article 9
of the applicable UCC) of Interchange, if any, relating thereto.
(b) The New Seller hereby confirms, affirms and ratifies the
sale, transfer, assignment and conveyance contained in the Receivables Purchase
Agreement and, in accordance with the Receivables Purchase Agreement, the New
Seller hereby sells, transfers, assigns and otherwise conveys to the New
Purchaser, without recourse, all right, title and interest of the New Seller in
and to (i) the Receivables (other than the Contributed Receivables) existing as
of the Cut-Off Date (or with respect to Additional Accounts, as of the
applicable Additional Account Cut-Off Date) and thereafter created, all monies
due or to become due with respect thereto and all proceeds (as defined in
Article 9 of the applicable UCC) of such Receivables and Coverage Proceeds, if
any, relating thereto and (ii) Interchange existing as of July 20, 2001 and
thereafter created, all monies due or to become due with respect thereto and all
proceeds (as defined in Article 9 of the applicable UCC) of Interchange, if any,
relating thereto.
(c) The New Seller and the New Purchaser intend that the
conveyance of the Receivables, the Interchange, and the other property by the
New Seller to the New Purchaser in accordance with the Receivables Purchase
Agreement constitute an absolute sale and not a transfer as security.
Notwithstanding this intent, if the conveyance is determined to be a transfer as
security rather than an absolute sale, the New Seller hereby grants to the New
Purchaser, in accordance with the Receivables Purchase Agreement, a security
interest in all of the New Seller's right, title and interest in and to (i) the
Receivables (other than the Contributed Receivables) existing as of the Cut-Off
Date (or with respect to Additional Accounts, as of the applicable Additional
Account Cut-Off Date) and thereafter created, all monies due or to become due
with respect thereto and all proceeds (as defined in Article 9 of the applicable
UCC) of such Receivables and Coverage Proceeds, if any, relating thereto and
(ii) Interchange existing as of July 20, 2001 and thereafter created, all monies
due or to become due with respect thereto and all proceeds (as defined in
Article 9 of the applicable UCC) of Interchange, if any, relating thereto.
SECTION 5. The New Purchaser hereby acknowledges its
acceptance of all right, title and interest in and to the property, now existing
and hereafter created, conveyed to the New Purchaser pursuant to Section 4(b) of
this Receivables Purchase Assignment and Assumption Agreement. The New Purchaser
also hereby acknowledges its acceptance of a security interest in all right,
title and interest in and to the property, now existing and hereafter created,
granted to the New Purchaser pursuant to Section 4(c) of this Receivables
Purchase Assignment and Assumption Agreement.
SECTION 6. Each of the Transferring Seller and the
Transferring Purchaser agrees to do or take, or cause to be done or taken, all
such things and actions as any of the parties
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hereto may reasonably request in order to effect more fully the transfers
contemplated by this Receivables Purchase Assignment and Assumption Agreement.
SECTION 7. This Receivables Purchase Assignment and Assumption
Agreement shall become effective upon receipt by the New Seller and the New
Purchaser of the following, each of which shall be reasonably satisfactory to
such party:
(a) notification in writing from each Rating Agency that the
terms of this Receivables Purchase Assignment and Assumption Agreement shall not
result in a Ratings Event (as defined in the Pooling and Servicing Agreement);
and
(b) counterparts of this Receivables Purchase Assignment and
Assumption Agreement duly executed by the parties hereto.
SECTION 8. This Receivables Purchase Assignment and Assumption
Agreement may be executed in any number of counterparts, each of which, when so
executed, shall be deemed to be an original, but all of which shall together
constitute but one and the same instrument.
SECTION 9. This Receivables Purchase Assignment and Assumption
Agreement shall be construed in accordance with the internal 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.
[Signature page follows]
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IN WITNESS WHEREOF, the Transferring Seller, the Transferring
Purchaser, the New Seller and the New Purchaser have caused this Receivables
Purchase Assignment and Assumption Agreement to be duly executed by their
respective officers as of the date first set forth above.
SEARS, XXXXXXX AND CO.,
as Transferring Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
SRFG, INC.,
as Transferring Purchaser
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
CITI CARDS SOUTH DAKOTA ACCEPTANCE CORP.,
as New Seller
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
CITI OMNI-S FINANCE LLC,
as New Purchaser
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
[Signature page to Receivable, Purchase Assignment and Assumption Agreement]
