EXECUTION COPY
SEARS, XXXXXXX AND CO.
SRFG, INC.
AMENDMENT NO. 2 TO
FIRST AMENDED AND RESTATED CONTRIBUTION AGREEMENT
amending
FIRST AMENDED AND RESTATED CONTRIBUTION AGREEMENT
Dated as of July 31, 1994
Dated as of November 3, 2003
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CITIBANK OMNI-S MASTER TRUST
(formerly known as Series Credit Account Master Trust II)
RECITALS
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WHEREAS, the parties hereto have entered into that certain First
Amended and Restated Contribution Agreement, dated as of July 31, 1994, as
amended by Amendment No. 1 to First Amended and Restated Contribution Agreement
(the "Contribution Agreement"), each by and between Sears, Xxxxxxx and Co., a
New York corporation ("Sears") and SRFG, Inc., formerly Sears Receivables
Financing Group, Inc., a Delaware corporation ("SRFG");
WHEREAS, Sears and SRFG desire to effect certain amendments to the
Contribution Agreement pursuant to Section 6.02 of the Contribution Agreement
(this "Amendment").
AGREEMENT
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NOW, THEREFORE, THIS AMENDMENT WITNESSETH that, for and in
consideration of the above premises, Sears and SRFG agree as follows:
I. Definitions.
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Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Contribution Agreement, as amended hereby.
II. Amendment to Article I.
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(a) Article I of the Contribution Agreement is amended by deleting the
defined terms "Interchange", "Sears" and "SRFG" in their entirety and
substituting in lieu thereof the following:
""Interchange" shall mean interchange fees or interchange
reimbursement fees, paid or payable to Sears National Bank (or to the
successors or assigns to the credit card business of Sears National
Bank) with respect to the Accounts, in its capacity as credit card
issuer, in connection with cardholder purchases or merchandise and
services and cardholder cash advances."
""Sears" shall mean Sears, Xxxxxxx and Co., a New York
corporation and its successors or assigns, including any entity that
becomes a successor or assign of Sears under this Agreement."
""SRFG" shall mean SRFG, Inc., a Delaware corporation, and its
successors and assigns, including any entity that becomes a successor or
assign of SRFG under this Agreement."
(b) Article I of the Contribution Agreement is amended by adding the
following in the appropriate alphabetical order:
""Amendment Date" shall mean November 3, 2003."
III. Amendment to Section 2.01(a).
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Section 2.01(a) of the Contribution Agreement is amended by deleting
the parenthetical language therein and replacing it with the following:
"(as defined in Article 9 of the applicable UCC)"
IV. Addition of Section 2.03.
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The Contribution Agreement is amended by adding the following Section
2.03:
"Section 2.03. Termination of Contribution. Notwithstanding
any other provision of this Agreement to the contrary, from and after
the Amendment Date, no Receivables, Interchange, or other property
shall be contributed by Sears to SRFG pursuant to this Agreement. On
the Amendment Date, each of Sears and SRFG shall xxxx its books and
records (including its computer files) to indicate such cessation."
V. Amendment to Section 3.01(a).
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Section 3.01(a) of the Contribution Agreement is amended and restated
to read in its entirety as follows:
"(a) Organization, etc. SRFG has been duly formed and
is validly existing and in good standing under the laws of the
jurisdiction of its formation, and has full power and authority to
execute and deliver this Agreement and to perform the terms and
provisions hereof."
VI. Amendment to Section 3.02(a).
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Section 3.02(a) of the Contribution Agreement is amended and restated
to read in its entirety as follows:
"(a) Organization, etc. Sears has been duly formed
and is validly existing and in good standing under the laws of the
jurisdiction of its formation, and has full power and authority to
execute and deliver this Agreement and to perform the terms and
provisions hereof."
VII. Amendment to Section 5.01(b).
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Section 5.01(b) of the Contribution Agreement is amended and restated
to read in its entirety as follows:
"(b) Name Change. Within fifteen days after Sears
makes any change in its name or its type or jurisdiction of
organization, Sears shall give SRFG notice of any such change and shall
file such financing statements or amendments as may be necessary to
continue and maintain the priority and perfection of SRFG's interest in
the Receivables and the proceeds thereof."
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VIII. Amendment to Section 6.08.
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Section 6.08 of the Contribution Agreement is amended by deleting the
word "Illinois" and replacing it with the words "New York".
IX. Amendment to Annex A.
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(a) Section 3(a) of Annex A to the Contribution Agreement is amended
by deleting the parenthetical language therein and replacing it with the
following:
"(as defined in Article 9 of the applicable UCC)"
(b) Section 3(b) of Annex A to the Contribution Agreement is amended
by deleting the following language therein:
"as defined in Sections 9-105 and 9-106 of the UCC as
in effect in the State of Illinois meeting the requirements of
applicable state law"
and replacing it with the following language:
"as defined in Article 9 of the applicable UCC
meeting the requirements of applicable state law"
X. Amendment to the Contribution Agreement.
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The Contribution Agreement is hereby amended by deleting the words
"Sears Credit Account Master Trust II" wherever they may appear and replacing
them with the words "Citibank Omni-S Master Trust".
XI. Effectiveness.
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This Amendment shall become effective upon receipt by the Sears and
SRFG of the following, each of which shall be reasonably satisfactory to such
party:
(a) notification in writing from each Rating Agency (as defined in the
Pooling and Servicing Agreement) that the terms of this Amendment shall not
result in a Ratings Event (as defined in the Pooling and Servicing Agreement);
and
(b) counterparts of this Amendment duly executed by the parties hereto.
XII. Miscellaneous.
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Counterparts. This Amendment 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.
Governing Law. This Amendment 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
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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, SRFG and Sears have caused this Amendment to be
duly executed by their respective officers as of the date first set forth above.
SRFG, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
[Signature page to Amendment No. 2 to the First Amended and Restated
Contribution Agreement]
