RECEIVABLES WAREHOUSE AGREEMENT
This RECEIVABLES WAREHOUSE AGREEMENT (this "Agreement")
is made as of this 21st day of December, 1995, by and between
SEARS, XXXXXXX AND CO., a New York corporation ("Sears"), having
its offices at 0000 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
and SEARS RECEIVABLES FINANCING GROUP, INC., a Delaware
corporation ("SRFG") having its office at 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, Sears and SRFG are parties to the following
agreements (collectively, the "Purchase and Contribution
Agreements"):
(i) Purchase Agreement dated as of January
18, 1990, and Assignment dated as of January 18,
1990, each relating to the Sears Credit Account
Trust 1990 A, as amended by that certain
Additional Assignment dated as of June 1, 1992, as
amended by that certain Supplemental Purchase
Agreement dated as of September 15, 1994 (the
"SCAT 1990 A Purchase Agreement");
(ii) Contribution Agreement dated as of
January 18, 1990, and Assignment dated as of
January 18, 1990, each relating to the Sears
Credit Account Trust 1990 A, as amended by that
certain Supplemental Contribution Agreement dated
as of September 15, 1994 (the "SCAT 1990 A
Contribution Agreement");
(iii) Purchase Agreement dated as of
March 1, 1990, and Assignment dated as of March 1,
1990, each relating to the Sears Credit Account
Trust 1990 B, as amended by that certain
Supplemental Purchase Agreement dated as of
September 15, 1994 (the "SCAT 1990 B Purchase
Agreement");
(iv) Contribution Agreement dated as of March
1, 1990, and Assignment dated as of March 1, 1990,
each relating to the Sears Credit Account Trust
1990 B, as amended by that certain Supplemental
Contribution Agreement dated as of September 15,
1994 (the "SCAT 1990 B Contribution Agreement");
(v) Purchase Agreement dated as of April 19,
1990, and Assignment dated as of April 19, 1990,
each relating to the Sears Xxxxxxx Euro Accounts
Receivable Select Trust 1990-1, as amended by that
certain Additional Assignment dated as of June 4,
1993, as amended by that certain Supplemental
Purchase Agreement dated as of September 15, 1994
(the "Euro 1990-1 Purchase Agreement");
(vi) Contribution Agreement dated as of April
19, 1990, and Assignment dated as of April 19,
1990, each relating to the Sears Xxxxxxx Euro
Accounts Receivable Select Trust 1990-1, as
amended by that certain Supplemental Contribution
Agreement dated as of September 15, 1994 (the
"Euro 1990-1 Contribution Agreement");
(vii) Purchase Agreement dated as of
August 1, 1990, and Assignment dated as of August
1, 1990, each relating to the Sears Credit Account
Trust 1990 C, as amended by that certain
Supplemental Purchase Agreement dated as of
September 15, 1994 (the "SCAT 1990 C Purchase
Agreement");
(viii) Contribution Agreement dated as of
August 1, 1990, and Assignment dated as of August
1, 1990, each relating to the Sears Credit Account
Trust 1990 C, as amended by that certain
Supplemental Contribution Agreement dated as of
September 15, 1994 (the "SCAT 1990 C Contribution
Agreement");
(ix) Purchase Agreement dated as of October
16, 1990, relating to the Sears Credit Account
Trust 1990 D, as amended by that certain
Supplemental Purchase Agreement dated as of
September 15, 1994 (the "SCAT 1990 D Purchase
Agreement"); and
(x) Contribution Agreement dated as of
October 16, 1990, relating to the Sears Credit
Account Trust 1990 D, as amended by that certain
Supplemental Contribution Agreement dated as of
September 15, 1994 (the "SCAT 1990 D Contribution
Agreement").
WHEREAS, pursuant to the provisions of the Purchase and
Contribution Agreements, Sears did sell, transfer and assign and
otherwise convey to SRFG, without recourse, all right, title and
interest of Sears in and to certain receivables.
WHEREAS, SRFG transferred the receivables into various
trusts, which have now terminated.
WHEREAS, when such trusts terminated, the receivables
from each trust were transferred by the trustee with respect
thereto to SRFG.
WHEREAS, Sears and SRFG desire to amend the terms and
conditions by which SRFG holds such receivables, and to permit
SRFG to hold the receivables in additional accounts on the same
terms and conditions.
WHEREAS, Sears and SRFG desire to permit SRFG to
transfer receivables into trusts, whether now existing or to be
formed in the future.
WHEREAS, Sears and SRFG may desire in the future to
amend the terms and conditions by which SRFG holds receivables
contributed or sold to it by Sears pursuant to other purchase and
contribution agreements.
NOW THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall,
unless the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular
and plural forms of the terms defined):
"Account" shall mean an open-end retail charge plan for
specified Persons, maintained by Sears or an affiliate of Sears
with respect to the sale of goods or services, receivables under
which are transferred to SRFG pursuant to this Agreement. Unless
SRFG otherwise elects, no Account shall be a Charged-Off Account
as of the Account Selection Date. Each Account shall be
identified by account number on Schedule 1 to this Agreement (as
such Schedule 1 is amended from time to time). The definition of
Account shall include each account (a "Transferred Account") into
which an Account shall be transferred provided that (i) such
transfer was made in accordance with the Credit Guidelines and
(ii) such Transferred Account can be traced or identified as an
account into which an Account has been transferred. The term
"Account" shall be deemed to refer to an Additional Account only
from and after the Additional Account Cut-Off Date with respect
thereto.
"Account Selection Date" for any Account, shall mean,
collectively, the last day of the Due Periods ending in September
1989, November 1989, February 1990 and June 1990 and, with
respect to Additional Accounts, the Account Selection Date
identified in the Additional Assignment with respect thereto.
"Add-ons" shall mean Receivables arising in the
Accounts after the Cut-Off Date.
"Addition Date" shall mean the date of an Additional
Assignment as described in Section 3.01 hereof.
"Additional Account Cut-Off Date" shall have the
meaning specified in Section 3.01 hereof.
"Additional Accounts" shall mean Accounts designated as
Additional Accounts pursuant to Section 3.01 or 3.02 hereof.
"Additional Assignment" shall have the meaning
specified in Section 3.01 hereof.
"Agreement" shall mean this Receivables Warehouse
Agreement and all amendments hereof and supplements hereto.
"Billing Cycle" for any Account shall mean the billing
cycle for such Account as determined by Sears or the applicable
affiliate of Sears in accordance with its normal practice.
"Charged-Off Account" shall mean each Account with
respect to which the Receivables in such Account have been
charged-off as uncollectible.
"Collections" shall mean (i) all payments including
Insurance Proceeds, if any, received by Sears or an affiliate of
Sears in respect of the Receivables at one of its central
administrative units charged with processing funds and recording
them in Sears or such affiliate's records, as applicable, in the
form of cash, checks, wire transfers, ATM transfers or other
forms of payment in accordance with a Credit Agreement in effect
from time to time and (ii) amounts treated as Collections
pursuant to various provisions of each Pooling and Servicing
Agreement. A Collection processed on an Account in excess of the
aggregate amount of Receivables in such Account shall be credited
to such Account or refunded to the Obligor by Sears or an
affiliate of Sears in accordance with its normal practice.
"Contributed Receivables" shall mean the Receivables
that were originally transferred by Sears to SRFG pursuant to the
SCAT 1990 A Contribution Agreement, the SCAT 1990 B Contribution
Agreement, the Euro 1990-1 Contribution Agreement, the SCAT 1990
C Contribution Agreement and the SCAT 1990 D Contribution
Agreement.
"Credit Agreement" shall mean, with respect to an
Account, the contract governing such Account.
"Credit Guidelines" shall mean the policies and
procedures relating to the operation of the credit business of
Sears or its affiliates, including, without limitation, the
written policies and procedures and the exercise of judgment by
employees of Sears or its affiliates in accordance with the
normal practice of Sears or its affiliates, as applicable, for
determining the creditworthiness of credit customers and the
extension of credit to customers, and relating to the maintenance
of credit accounts and collection of credit receivables, as such
policies and procedures may be amended from time to time.
"Cut-Off Date" for any Account shall mean (i) with
respect to any Account the Receivables in which were originally
transferred to SRFG pursuant to the SCAT 1990 A Purchase
Agreement or the SCAT 1990 A Contribution Agreement, the last day
of the Due Period ending in December 1989, (ii) with respect to
any Account the Receivables in which were originally transferred
to SRFG pursuant to the SCAT 1990 B Purchase Agreement or the
SCAT 1990 B Contribution Agreement, the last day of the Due
Period ending in February 1990, (iii) with respect to any Account
the Receivables in which were originally transferred to SRFG
pursuant to the Euro 1990-1 Purchase Agreement or the Euro 1990-1
Contribution Agreement, the last day of the Due Period ending in
March 1990, (iv) with respect to the SCAT 1990 C Purchase
Agreement or the SCAT 1990 C Contribution Agreement, the last day
of the Due Period ending in July 1990, (v) with respect to the
SCAT 1990 D Purchase Agreement or the SCAT 1990 D Contribution
Agreement, the last day of the Due Period ending in September
1990, and (vi) with respect to any Additional Account, the
Additional Account Cut-Off Date with respect thereto. The Cut-
Off Dates for the Accounts are sometimes collectively referred to
as the "Cut-Off Date."
"Date of Processing" for any transaction shall mean the
date on which such transaction is first recorded on the computer
master file of credit accounts maintained on behalf of SRFG at
one of Sears or an affiliate of Sears central administrative
units charged with processing funds and recording them in Sears
or such affiliate's records (without regard to the effective date
of such recordation).
"Distribution Date" shall mean any day which is a
Distribution Date pursuant to any Pooling and Servicing
Agreement.
"Due Period" for any Account at any time, shall mean
the period included in each monthly Billing Cycle applicable to
such Account. When used with respect to all the Accounts and
related to a Distribution Date, "Due Period" shall mean,
collectively, the respective Due Periods applicable to each of
the Accounts, which commenced in the second preceding calendar
month and ended in the calendar month next preceding such
Distribution Date, and shall be referred to herein as a "related
Due Period" with reference to a Distribution Date.
"Eligible Receivable" shall mean each Receivable: (i)
which is payable in United States dollars, (ii) which was created
in compliance, in all material respects, with all Requirements of
Law applicable to Sears or one of its affiliates, as applicable,
and SRFG and pursuant to a Credit Agreement which complies, in
all material respects, with all Requirements of Law applicable to
Sears or one of its affiliates, as applicable, and SRFG, (iii) as
to which, if such Receivable was created before the Original
Agreement Date or the relevant Addition Date, as applicable, at
the time of the conveyance of such Receivable to SRFG, Sears had
or will have good and marketable title thereto free and clear of
all Liens, (iv) as to which, if such Receivable was created on or
after the Original Agreement Date or the relevant Addition Date,
as applicable, at the time of the creation of such Receivable,
SRFG or, as applicable, the Trust to which such Receivable has
been transferred pursuant to the applicable Pooling and Servicing
Agreement, had or will have good and marketable title thereto
free and clear of all Liens arising under or through Sears with
respect to such Receivable, and (v) which constitutes an
"account", "general intangible" or "chattel paper" under and as
defined in Article 9 of the UCC as then in effect in the State of
Illinois or the State of Arizona, as applicable.
"Finance Charge Receivables" with respect to any
Account for any Due Period will mean the amount billed as finance
charges and, if applicable, fees accounted for as finance charges
on such Account for such Due Period.
"Governmental Authority" shall mean the United States
of America, any state or other political subdivision thereof.
"Ineligible Receivable" shall have the meaning
specified in Section 6.05(d) hereof.
"Insurance Proceeds" shall mean any amounts recovered
pursuant to any credit life insurance policies covering any
Obligor with respect to Receivables under such Obligor's Account.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, encumbrance, lien or other security agreement,
including, without limitation, any conditional sale or other
title retention agreement, and any financing lease having
substantially the same economic effect as any of the foregoing,
except that statutory and other non-consensual liens shall not be
Liens.
"Obligor" shall mean with respect to any Account, the
Person or Persons obligated to make payments with respect to such
Account, including any guarantor thereof.
"Original Agreement Date" shall mean (i) with respect
to any Account the Receivables in which were originally
transferred to SRFG pursuant to the SCAT 1990 A Purchase
Agreement or the SCAT 1990 A Contribution Agreement, January 18,
1990; (ii) with respect to any Account the Receivables in which
were originally transferred to SRFG pursuant to the SCAT 1990 B
Purchase Agreement or the SCAT 1990 B Contribution Agreement,
March 1, 1990; (iii) with respect to any Account the Receivables
in which were originally transferred to SRFG pursuant to the Euro
1990-1 Purchase Agreement or the Euro 1990-1 Contribution
Agreement, April 19, 1990; (iv) with respect to any Account the
Receivables in which were originally transferred to SRFG pursuant
to the SCAT 1990 C Purchase Agreement or the SCAT 1990 C
Contribution Agreement, August 1, 1990; (v) with respect to any
Account the Receivables in which were originally transferred to
SRFG pursuant to the SCAT 1990 D Purchase Agreement or the SCAT
1990 D Contribution Agreement, October 16, 1990, and (vi) with
respect to any Additional Account designated as such pursuant to
a Trust Account Assignment, the date identified in the Trust
Account Assignment as the Original Agreement Date.
"Person" shall mean an individual, a partnership or a
Corporation. The term "Corporation" for the purposes of the
preceding sentence only shall mean a corporation, joint stock
company, business trust or other similar association.
"Pooling and Servicing Agreement" shall mean each
Pooling and Servicing Agreement by and among Sears as Servicer,
SRFG as Seller and the Trustee with respect thereto, as each such
Pooling and Servicing Agreement may be amended or supplemented
from time to time, pursuant to which Receivables have been
transferred to a Trust.
"Portfolio Repurchase Event" shall have the meaning set
forth in Section 6.05(a) hereof.
"Principal Receivable" shall mean each Receivable other
than Finance Charge Receivables. Any Principal Receivables that
the Seller is required to convey to a Trust pursuant to a Pooling
and Servicing Agreement, and is unable to convey to such Trust as
provided in Section 6.04, shall not be included in calculating
the aggregate amount of Principal Receivables.
"Receivable" shall mean any amount owing by any Obligor
under an Account from time to time, including, without
limitation, amounts owing for the payment of goods and services,
finance charges and other charges, if any. A Receivable shall be
deemed to have been created at the end of the day on the Date of
Processing of such Receivable. A Receivable shall not include
any amount owing under an Account in which the Receivables have
been repurchased pursuant to Section 6.05(d).
"Receivable Repurchase Event" shall have the meaning
set forth in Section 6.05(c) hereof.
"Receivables Purchase Price" shall mean the amounts
paid to Sears by SRFG pursuant to the SCAT 1990 A Purchase
Agreement, the SCAT 1990 B Purchase Agreement, the Euro 1990-1
Purchase Agreement, the SCAT 1990 C Purchase Agreement and the
SCAT 1990 D Purchase Agreement.
"Requirements of Law" for any Person shall mean the
certificate of incorporation and by-laws or other organizational
or governing documents of such Person, and any requirement of any
law, rule or regulation or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person
is subject, whether federal, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System); provided, however, that any such
requirement shall not be deemed a Requirement of Law if the
enforcement of such requirement would not have a material adverse
effect upon the collectability of the Receivables taken as a
whole.
"Sears" shall mean Sears, Xxxxxxx and Co., a New York
corporation, and its successors and assigns.
"Seller Servicing Fee" shall have the meaning set forth
in Section 7.02 hereof.
"SRFG" shall mean Sears Receivables Financing Group,
Inc., a Delaware corporation, its successors and assigns.
"Trust" shall mean any Sears Credit Account Trust or
Sears Credit Account Master Trust formed pursuant to a Pooling
and Servicing Agreement.
"Trust Account Assignment" shall have the meaning
specified in Section 3.02 hereto.
"Trustee" shall mean the institution executing any
Pooling and Servicing Agreement as Trustee, or its successor in
interest, or any successor trustee appointed as therein provided.
"UCC" shall mean the Uniform Commercial Code, as
amended from time to time, as in effect in any specified
jurisdiction.
ARTICLE II
PURCHASE AND SALE OF THE RECEIVABLES
OR CONTRIBUTION OF RECEIVABLES AS CAPITAL
Section 2.01 Purchase and Sale of Receivables.
(a) Transfer of Receivables. Sears hereby
confirms that it has sold, transferred, assigned and otherwise
conveyed and does hereby sell, transfer, assign and otherwise
convey to SRFG, without recourse, all right, title and interest
of Sears in and to the Receivables (other than the Contributed
Receivables) existing as of the applicable Cut-Off Dates and
thereafter created, all monies due or to become due with respect
thereto and all proceeds (as defined in Section 9-306 of the UCC
as in effect in the State of Illinois) of such Receivables and
Insurance Proceeds, if any, relating thereto. In the event such
sale, transfer, assignment or conveyance is deemed not to
constitute a valid transfer and assignment to SRFG of all right,
title and interest of Sears in and to such property, Sears does
hereby confirm that it has granted and does hereby grant to SRFG
a security interest therein.
(b) Receivables Purchase Price. In consideration
for the Receivables (except the Contributed Receivables) and
payment by Sears of all expenses of SRFG incurred in connection
with the establishment of the Trusts pursuant to the applicable
Pooling and Servicing Agreements (regardless of the amount of
such expenses), SRFG (i) paid to Sears the Receivables Purchase
Price, (ii) hereby confirms that it has agreed and hereby agrees
to loan (without further action of SRFG) to Sears all Collections
in respect of the Receivables without interest until such funds
are to be disbursed by Sears as Servicer to or on behalf of SRFG
as Seller in accordance with the terms of each applicable Pooling
and Servicing Agreement, which loan shall be payable to SRFG on
demand, and (iii) in further consideration for the Add-ons,
agrees to purchase such Add-ons pursuant to Section 7.03 hereof.
Section 2.02 Contribution of Receivables. Sears
hereby confirms that it has transferred, assigned and otherwise
conveyed and does hereby sell, transfer, assign and otherwise
convey to SRFG, without recourse, all right, title and interest
of Sears in and to the Contributed Receivables existing as of the
applicable Cut-Off Dates and thereafter created, all monies due
or to become due with respect thereto and all proceeds (as
defined in Section 9-306 of the UCC as in effect in the State of
Illinois) of such Receivables and Insurance Proceeds, if any,
relating thereto. In the event such transfer, assignment or
conveyance is deemed not to constitute a valid transfer and
assignment to SRFG of all right, title and interest of Sears in
and to such property, Sears does hereby confirm that it has
granted and hereby grants to SRFG a security interest therein to
secure the obligations of Sears under this Agreement.
ARTICLE III
CONVEYANCE OF ADDITIONAL RECEIVABLES
Section 3.01 Conveyance of Receivables in New
Additional Accounts.
Transfer of Additional Accounts. Upon the request
of SRFG, Sears shall designate from time to time Additional
Accounts to be included as Accounts, the receivables of which
shall be contributed to SRFG or, at Sears written election, sold
to SRFG. Any such designation of Additional Accounts shall be
effective as of the Additional Account Cut-Off Date specified by
SRFG and set forth in the Additional Assignment (as defined
below) ("Additional Account Cut-Off Date"), and shall be
accomplished by the delivery to SRFG by Sears of an executed
written Assignment of Receivables in Additional Accounts (the
"Additional Assignment") substantially in the form of Annex A-1
or Annex A-2 hereto and a computer file, hard copy or microfiche
list containing a true and complete list of all Additional
Accounts identified by account number. If Sears has elected in
writing to sell the receivables in such Additional Accounts to
SRFG, such Additional Assignment shall also be accompanied by the
payment to Sears by SRFG of funds sufficient to purchase the
Receivables in such Additional Accounts on the same terms that
SRFG purchases Add-ons pursuant to Section 7.03. Simultaneously
with the execution of an Additional Assignment, Schedule 1 hereto
shall be amended to include the Additional Accounts.
Section 3.02 Inclusion of Receivables from Trusts.
Sears and SRFG may from time to time designate
Additional Accounts to be included as Accounts under this
Agreement pursuant to an Assignment of Receivables of Trust
Accounts substantially in the form of Annex B hereto (a "Trust
Account Assignment"). As of the Addition Date, the transfer of
the Receivables in such Additional Accounts from Sears to SRFG
shall be governed solely by the terms of this Agreement (as the
same may be amended by such Trust Account Assignment) and any
prior agreements between Sears and SRFG with respect to the
Receivables in such Additional Accounts shall terminate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of SRFG.
SRFG hereby represents and warrants to Sears as of the date
hereof:
(a) Organization, etc. SRFG has been duly
incorporated and is validly existing as a corporation and in
good standing under the laws of the State of Delaware, and
has full corporate power and authority to execute and
deliver this Agreement and to perform the terms and
provisions hereof.
(b) Due Authorization. The execution, delivery
and performance by SRFG of this Agreement have been duly
authorized by all necessary corporate action, do not require
any approval or consent of any governmental agency or
authority, do not and will not conflict with any material
provision of the Certificate of Incorporation or By-Laws of
SRFG, and do not and will not conflict with or result in a
breach which would constitute a material default under, any
agreement for borrowed money binding upon or applicable to
it or such of its property which is material to it, or to
the best of SRFG's knowledge, any law or governmental
regulation or court decree applicable to it or such material
property, and this Agreement is the valid, binding and
enforceable obligation of SRFG, except as the same may be
limited by bankruptcy, receivership, insolvency,
reorganization, moratorium or similar laws now or hereafter
in effect relating to creditors' rights generally or general
principles of equity (whether considered in a proceeding at
law or in equity) and the discretion of the court before
which any proceeding therefor may be brought.
Section 4.02 Representations and Warranties of Sears.
Sears hereby represents and warrants to SRFG as of the date
hereof:
(a) Organization, etc. Sears has been duly
incorporated and is validly existing as a corporation and in
good standing under the laws of the State of New York, and
has full corporate power and authority to execute and
deliver this Agreement and to perform the terms and
provisions hereof.
(b) Due Authorization. The execution, delivery
and performance by Sears of this Agreement have been duly
authorized by all necessary corporate action, do not require
any approval or consent of any governmental agency or
authority, do not and will not conflict with any material
provision of the Amended and Restated Certificate of
Incorporation or By-Laws of Sears, and do not and will not
conflict with or result in a breach which would constitute a
material default under, any agreement for borrowed money
binding upon or applicable to it or such of its property
which is material to it or its subsidiaries (whether or not
consolidated) taken as a whole, or to the best of Sears
knowledge, any law or governmental regulation or court
decree applicable to it or such material property, and this
Agreement is the valid, binding and enforceable obligation
of Sears except as the same may be limited by bankruptcy,
receivership, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to
creditors' rights generally, or general principles of equity
(whether considered in a proceeding at law or in equity) and
the discretion of the court before which any proceeding
therefor may be brought.
(c) Accuracy of Information. All information
heretofore furnished by Sears in writing to SRFG for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information
hereafter furnished by Sears in writing to SRFG will be,
true and accurate in every material respect or based on
reasonable estimates on the date as of which such
information is stated or certified.
(d) Transfer of Receivables. As of the date of
this Agreement, each Receivable then existing on such date
will be, to the best knowledge of Sears, an Eligible
Receivable. In the case of Additional Accounts, as of any
Addition Date, each Receivable then existing under such
Additional Accounts will be, to the best knowledge of Sears,
an Eligible Receivable.
(e) Creation of Receivables. As of the date of
the creation of any Receivable subsequent to the date of
this Agreement, such Receivable will be, to the best
knowledge of Sears, an Eligible Receivable.
(f) Selection of Accounts. The Accounts were not
selected on any basis indicative of creditworthiness, except
that Charged-Off Accounts were not included.
(g) Adverse Proceedings. To the best knowledge
of Sears, there are no proceedings or investigations pending
against Sears before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Sears (A) asserting
the invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (C) seeking any determination or ruling which
in the judgment of Sears would materially and adversely
affect the performance by Sears of its obligations under
this Agreement or the validity or enforceability of this
Agreement.
ARTICLE V
ADDITIONAL ACTS
Section 5.01 Computer Files Marked. Sears shall, at
its own expense, on or prior to the date hereof, indicate in its
computer files or in the computer files of its affiliates, as
applicable, that Receivables created in connection with the
Accounts have been sold or otherwise conveyed to SRFG pursuant to
this Agreement and deliver to SRFG a computer file, hard copy or
microfiche list containing a true and complete list of all such
Accounts, identified by account number.
Section 5.02 Evidence of UCC Filing. Sears shall
record and file, at its own expense, one or more financing
statements with respect to the Receivables now existing and
hereafter created for the sale or transfer of accounts, general
intangibles or chattel paper as defined in Sections 9-105 and 9-
106 of the UCC as in effect in the State of Illinois meeting the
requirements of Illinois law, in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of such
Receivables to SRFG, and shall deliver a file-stamped copy of
such financing statement or other evidence of such filing to
SRFG.
ARTICLE VI
COVENANTS OF SEARS
Sears agrees with SRFG as follows:
Section 6.01 Protection of Right, Title and Interest.
(a) Initial Filing. Sears shall cause all
financing statements and continuation statements and any other
necessary documents covering SRFG's right, title and interest to
the Receivables to be promptly filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect
the right, title and interest of SRFG hereunder to all property
sold, transferred, assigned or otherwise conveyed hereunder.
Sears shall deliver to SRFG file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as
provided above, as soon as available following such recording,
registration or filing. SRFG shall cooperate fully with Sears in
connection with the obligations set forth above and will execute
any and all documents reasonably required to fulfill the intent
of this Section 6.01(a).
(b) Name Change. Within fifteen days after Sears
makes any change in its name, identity or corporate structure
which would make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as
in effect in Illinois, Sears shall give SRFG notice of any such
change and shall file such financing statements or amendments as
may be necessary to continue the perfection of the SRFG security
interest in the Receivables and the proceeds thereof.
Section 6.02 Security Interests. Except for the
conveyances hereunder and pursuant to any applicable Pooling and
Servicing Agreement, Sears will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any Receivable, whether existing as
of the applicable Cut-Off Date or thereafter created, or any
interest therein, and Sears shall defend the right, title and
interest of SRFG in, to and under such Receivables, whether
existing as of the applicable Cut-Off Date or thereafter created,
against all claims of third parties claiming through or under
Sears. The conveyance of existing or future Receivables to SRFG,
or grant of a security interest therein, under this Agreement or
which is confirmed hereby shall, in the case of Receivables
arising under a Credit Agreement that constitutes chattel paper
or a part of chattel paper, be deemed to include a conveyance of
an interest in, or grant of a security interest in, such chattel
paper to the extent necessary to fully perfect the interest of
SRFG in such Receivables.
Section 6.03 Credit Agreements and Guidelines. Sears
shall service and administer the Accounts in a particular state
or similar jurisdiction in accordance with policies identical to
those used in servicing and administering the accounts of Sears
or one of its affiliates, as applicable, that are substantially
similar to the Accounts in such jurisdiction. The terms and
provisions of a Credit Agreement may be changed in any respect
(including, without limitation, the calculation of the amount, or
the timing, of charge-offs) only if such change is made
applicable to the entire portfolio of accounts of Sears or one of
its affiliates, as applicable, that are substantially similar to
the Accounts, obligors of which are resident in a particular
affected state or similar jurisdiction, and not only to Accounts.
Section 6.04 Account Allocations. In the event that
Sears is unable for any reason to transfer Add-ons to SRFG in
accordance with the provisions of this Agreement (including,
without limitation, by reason of any governmental agency having
regulatory authority over Sears or any court of competent
jurisdiction ordering that Sears not convey any Add-ons to SRFG)
then, in any such event, Sears agrees to allocate and pay to
SRFG, after the date of such inability, all Collections with
respect to Principal Receivables, and all amounts which would
have constituted Collections with respect to Add-ons which would
have been Principal Receivables but for Sears inability to
transfer such Add-ons; and Sears agrees to have such amounts
applied as Collections in accordance with Section 2.01(b) and
Article VII hereof and in accordance with any applicable Pooling
and Servicing Agreement. If Sears is unable pursuant to any
Requirement of Law to allocate Collections as described above,
Sears agrees that it shall, in any such event, allocate after
such date payments to each Account with respect to the principal
balance of such Account first to the oldest principal balance of
such Account and to have such payments applied as Collections in
accordance with Section 2.01(b) and Article VII of this Agreement
and or accordance with any applicable Pooling and Servicing
Agreement. The parties hereto agree that Receivables with
respect to finance charges, whenever created, accrued in respect
of Principal Receivables which have been conveyed to SRFG by
Sears shall continue to be owned by SRFG notwithstanding any
cessation of the transfer of additional Principal Receivables to
SRFG and Collections with respect thereto shall continue to be
allocated and paid in accordance with Article VII.
Section 6.05 Repurchase Obligations of Sears Relating
to the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and
Assignment. If as of the date of this Agreement or as of any
date on which there is an assignment of Additional Accounts:
(i) this Agreement does not constitute a
legal, valid and binding obligation of Sears enforceable
against Sears in accordance with its terms, except as such
enforceability may be limited by bankruptcy, receivership,
insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to creditors' rights
generally or general principles of equity (whether
considered in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefor
may be brought;
(ii) this Agreement or appropriate
assignment, as the case may be, constitutes a sale or
transfer of the Receivables existing as of the applicable
Cut-Off Date and thereafter created, and of all proceeds (as
defined in the UCC as in effect in the State of Illinois) of
such Receivables, but does not constitute a valid transfer
and assignment to SRFG of all right, title and interest of
Sears in and to such property, or such property will not be
owned by SRFG free and clear of any Lien of any Person
claiming through or under Sears; or
(iii) any of the representations and
warranties under Sections 4.02(a), (b) or (c) are not true
and correct and such breach is not cured within 60 days (or
such longer period, not in excess of 150 days, as may be
agreed to by SRFG) after receipt of written notice by Sears,
then a "Portfolio Repurchase Event" shall have occurred.
(b) Repurchase of Portfolio. If at any time a
Portfolio Repurchase Event shall have occurred and be continuing,
SRFG, by notice then given in writing to Sears, may direct Sears
to purchase an amount of Principal Receivables (as specified
below) within 60 days of such notice, or within such longer
period as may be specified in such notice, and Sears shall be
obligated to purchase such Receivables on a Distribution Date
occurring within such period on the terms and conditions set
forth below; provided, however, that no such purchase shall be
required to be made if, at any time during such period, such
Portfolio Repurchase Event shall not adversely affect in any
material respect the interests of SRFG. Sears shall pay SRFG on
the Distribution Date an amount equal to the purchase price for
such Receivables. The purchase price will be equal to the amount
of Principal Receivables at the end of the Due Period related to
such Distribution Date; provided, however, that if an assignment
of Additional Accounts results in a Portfolio Repurchase Event,
only the Receivables of such Additional Accounts shall be
repurchased at a price equal to the amount of Principal
Receivables at the end of the Due Period related to such
Distribution Date that are attributable to the Additional
Accounts. Payment of the purchase price shall be considered a
repayment in full of such Receivables. On the Distribution Date
on which such payment is made, the Receivables to be so purchased
and all the monies due or to become due with respect thereto and
all proceeds of such Receivables shall be released to Sears, and
SRFG shall execute and deliver such instruments of transfer or
assignment, including, without limitation, any document necessary
to release SRFG's interest in such Receivables and to release any
filing evidencing, perfecting or continuing such interest, in
each case without recourse, representation or warranty (except
for the warranty that since the date of transfer by Sears under
this Agreement SRFG has not sold, transferred or encumbered any
such Receivables or interest therein other than pursuant to any
applicable Pooling and Servicing Agreement), as shall be
reasonably requested by Sears to vest in Sears, or its designee
or assignee, all right, title and interest of SRFG in and to such
Receivables, all monies due or to become due with respect thereto
and all proceeds of such Receivables.
(c) Eligibility of Receivables. In the event
that any representation or warranty under Section 4.02(d) or
4.02(e) is not true and correct in any material respect as of the
date specified therein with respect to any Receivable and such
breach has a material adverse effect on SRFG's interest in the
Receivables and is not cured within 60 days (or such longer
period as may be agreed to by SRFG) after receipt of written
notice by Sears, then a "Receivable Repurchase Event" shall have
occurred. The determination of materiality pursuant to this
subsection (c) shall be made by an officer of Sears in his sole
reasonable judgment; provided, however, that if the aggregate
amount of Ineligible Receivables (as defined in any Pooling and
Servicing Agreement) as of the last day of the immediately
preceding Due Period exceeds five percent of the interest of SRFG
in the Receivables (as defined in such Pooling and Servicing
Agreement) as a whole as of the last day of the immediately
preceding Due Period, an officer of Sears will be deemed to have
made an affirmative determination of such materiality with
respect to Ineligible Receivables in the applicable Trust.
(d) Purchase of Ineligible Receivables. If at
any time a Receivable Repurchase Event shall have occurred and be
continuing, Sears shall purchase all the Receivables in each
Account in which there is any Receivable as to which such event
relates (an "Ineligible Receivable") on the terms and conditions
set forth below; provided, however, that Sears shall not purchase
any Receivables that have been transferred to a Trust unless a
Receivables Repurchase Event (as defined in the applicable
Pooling and Servicing Agreement) shall have occurred with respect
to such Trust. Sears shall purchase all the Receivables in each
Account with an Ineligible Receivable on the Distribution Date
related to the then current Due Period by paying SRFG the face
amount of such Ineligible Receivables. Such payment shall be
considered a repayment in full of such Receivables. Upon each
such purchase by Sears of Receivables, SRFG shall automatically
and without further action be deemed to sell, transfer, assign
and otherwise convey to Sears, without recourse, representation
or warranty (except for the warranty that since the date of
transfer by Sears under this Agreement SRFG has not sold,
transferred or encumbered any such Receivable or interest therein
other than pursuant to any applicable Pooling and Servicing
Agreement), all the right, title and interest of SRFG in and to
such Receivables, all monies due or to become due with respect
thereto, all proceeds thereof and all Receivables thereafter
created in such Account. SRFG shall execute such documents and
instruments of transfer or assignment, including, without
limitation, any document necessary to release SRFG's interest in
such Receivables and to release any filing evidencing, perfecting
or continuing such interest and take such other actions as shall
reasonably be requested by Sears to effect the conveyance of such
Receivables pursuant to this subsection. The obligation of Sears
to purchase any Ineligible Receivables shall constitute the sole
remedy available to SRFG for a Receivable Repurchase Event.
Section 6.06 Receivables Not to be Evidenced by
Promissory Notes. Sears will take no action to cause any
Receivable to be evidenced by any instrument (as defined in the
UCC as in effect in the State of Illinois) except in connection
with its enforcement or collection of an Account.
ARTICLE VII
COLLECTIONS
Section 7.01 Statement. On each Distribution Date,
Sears shall deliver to SRFG a statement dated such Distribution
Date and accompanied by such information as SRFG may reasonably
request as long as it can be provided without unreasonable effort
and expense to Sears. Sears shall deliver to SRFG the Monthly
Servicer's Certificate (as defined in each Pooling and Servicing
Agreement) in accordance with the requirements of each applicable
Pooling and Servicing Agreement.
Section 7.02 Servicing Fee. As compensation for its
servicing of the Accounts hereunder and under each Pooling and
Servicing Agreement and as reimbursement of its expenses as set
forth in the immediately following paragraph, Sears shall be
entitled to receive a monthly servicing fee in respect of any Due
Period (or portion thereof) (the "Seller Servicing Fee"), payable
in arrears on each Distribution Date (except that the Seller
Servicing Fee shall only be paid on the first Distribution Date
of each month if such month contains more than one Distribution
Date) in the amounts provided in each Pooling and Servicing
Agreement; provided, however, that such amounts may be modified
pursuant to any related Series Supplement (as defined in any
applicable Pooling and Servicing Agreement), and provided,
further, that any amounts paid to Sears in respect of the Seller
Servicing Fee for any Trust pursuant to the terms of any purchase
agreement or contribution agreement between Sears and SRFG with
respect to such Trust, shall be deducted from the Seller
Servicing Fee to be paid hereunder. Sears may deduct the Seller
Servicing Fee from any funds otherwise to be disbursed by Sears
to SRFG pursuant to the Pooling and Servicing Agreement, any
series supplement thereunder and Section 2.01(b).
Sears expenses include the reasonable fees and
disbursements of independent accountants and all other expenses
incurred by Sears in connection with its activities hereunder.
Sears shall be required to pay such expenses for its own account,
and shall not be entitled to any payment from SRFG therefor other
than the Seller Servicing Fee.
Section 7.03 Purchase of Add-Ons. On each
Distribution Date, after giving effect to any transactions on
such day pursuant to each Pooling and Servicing Agreement, SRFG
shall purchase from Sears, and Sears shall sell, for cash or for
cancellation of indebtedness, all Add-ons created in the Accounts
during the Due Period related to such Distribution Date;
provided, however, that Sears may at its option, elect (in a
writing executed subsequent to the date of this Agreement) to
contribute such Add-ons to SRFG. Purchases of Add-ons shall (i)
be on such terms between SRFG and Sears as at the time of
acquisition by SRFG shall not in the opinion of SRFG be
materially less favorable to SRFG than accepted credit practice
for transactions of a generally similar character and (ii) be
acquired by SRFG on a basis which in the opinion of SRFG
reasonably reflects the general credit conditions at the time of
the acquisition taking into account the quality of such Add-ons
and other pertinent factors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Obligations of Sears. The obligations of
Sears to SRFG under this Agreement shall not be affected by
reason of any invalidity, illegality or irregularity of any
Account.
Section 8.02 Amendment. This Agreement may be amended
from time to time by a written amendment duly executed and
delivered by Sears and SRFG.
Section 8.03 Replacement of other Agreements. This
agreement replaces and supersedes the Purchase and Contribution
Agreements, which shall no longer have any force and effect;
provided, however, that any transfer of receivables, grant of
security interests, loan or contribution of receivables contained
therein shall survive and is hereby confirmed.
Section 8.04 Waivers. No failure or delay on the part
of SRFG in exercising any power, right or remedy under this
Agreement, any Additional Assignment or any Trust Account
Assignment shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of
any other power, right or remedy.
Section 8.05 Notices. All communications and notices
pursuant hereto to either party shall be in writing or by
facsimile and addressed or delivered to it at its address (or in
case of telex, at its telex number at such address) shown in the
opening portion of this Agreement or at such other address as may
be designated by it by notice to the other party and, if mailed
or sent by telegraph or telex, shall be deemed given when mailed,
communicated to the telegraph office or transmitted by telex. In
the case of Sears, such notice shall be directed to the attention
of Senior Vice President, General Counsel and Secretary, and in
the case of SRFG such notice shall be directed to the attention
of the Secretary.
Section 8.06 Costs and Expenses. In addition to
paying all expenses of SRFG incurred in connection with the
issuance of investor certificates pursuant to the Pooling and
Servicing Agreements, Sears agrees to pay all reasonable out-of-
pocket costs and expenses of SRFG, excluding fees and expenses of
counsel, in connection with the perfection as against third
parties of SRFG's right, title and interest in and to the
Receivables and the enforcement of any obligation of Sears
hereunder.
Section 8.07 Confidential Information. SRFG agrees
that it will neither use nor disclose to any person the names and
addresses of the Obligors, except in connection with the
enforcement of SRFG's rights hereunder, under the Accounts, under
any Pooling and Servicing Agreement or as required by law.
Section 8.08 Headings and Cross-references. The
various headings in this Agreement are included for convenience
only and shall not affect the meaning or interpretation of any
provision of this Agreement. References in this Agreement to
Section names or numbers are to such Sections of this Agreement,
unless the context otherwise requires.
Section 8.09 Governing Law. This Agreement and each
assignment shall be governed by and construed in accordance with
the internal laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of this 21st day of December, 1995.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
SEARS
RECEIVABLES FINANCING GROUP, INC.
By: /s/ Xxxxxxx X. Carp
Name: Xxxxxxx X. Carp
Title: President
ANNEX A-1
FORM OF ADDITIONAL ASSIGNMENT
ADDITIONAL ASSIGNMENT No. _____, dated as of _________,
19__, by Sears, Xxxxxxx and Co., a New York corporation
("Sears"), to Sears Receivables Financing Group, Inc., a Delaware
corporation ("SRFG") pursuant to the Receivables Warehouse
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Sears and SRFG are parties to the Receivables
Warehouse Agreement, dated as of December 21, 1995 (hereinafter
as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Receivables
Warehouse Agreement");
WHEREAS, pursuant to the Receivables Warehouse
Agreement, Sears wishes to designate Additional Accounts to be
included as Accounts and to contribute the Receivables of such
Additional Accounts, existing as of the Additional Account Cut-
Off Date, to SRFG (as each such term is defined in the
Receivables Warehouse Agreement).
NOW THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and
covenants contained herein, SRFG and Sears hereby agree as
follows:
1. Defined Terms. All capitalized terms defined in
the Receivables Warehouse Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, ________, 19___.
"Additional Account Cut-Off Date" shall mean, with
respect to the Additional Accounts designated hereby, the first
day of the Due Period ending in ___________, 19___.
2. Designation of Additional Accounts. Sears does
hereby deliver herewith a computer file, hard copy or microfiche
list containing a true and complete list of each credit account
which as of the Additional Account Cut-Off Date shall be deemed
to be an Additional Account, such accounts being identified by
account number. Such list is marked as Schedule 1 to this
Additional Assignment and is hereby incorporated into and made a
part of this Additional Assignment and Schedule 1 attached to the
Receivables Warehouse Agreement.
3. Conveyance of Receivables.
(a) Sears hereby transfers, assigns and otherwise
conveys to SRFG, without recourse, all right, title and interest
of Sears in and to the Receivables existing on and after the
Additional Account Cut-Off Date and thereafter created in the
Additional Accounts designated hereby, all monies due or to
become due with respect thereto, and all proceeds (as defined in
Section 9-306 of the UCC as in effect in the State of Illinois)
of such Receivables and Insurance Proceeds, if any, relating
thereto. In the event such sale, transfer, assignment or
conveyance is deemed not to constitute a valid transfer and
assignment to SRFG of all right, title and interest of Sears in
and to such property, Sears does hereby grant to SRFG a security
interest therein to secure the obligations of Sears under this
Additional Assignment and the Receivables Warehouse Agreement.
(b) In connection with such transfer, Sears
agrees to record and file, at its own expense, a financing
statement with respect to the Receivables now existing and
hereafter created in the Additional Accounts designated hereby
(which may be a single financing statement with respect to all
such Receivables) for the transfer of accounts, general
intangibles or chattel paper 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 in such manner and in such
jurisdictions as are necessary to perfect the transfer and
assignment of such Receivables to SRFG, and to deliver a file-
stamped copy of such financing statement or other evidence of
such filing (which may, for purposes of this Section 3, consist
of telephone confirmation of such filing) to SRFG on or prior to
the date of this Additional Assignment.
(c) In connection with such transfer, Sears further
agrees, at its own expense, on or prior to the date of this
Additional Assignment to indicate, or to cause to be indicated,
in Sears computer files or in the computer files of an affiliate
of Sears, as applicable, that Receivables created in connection
with the Additional Accounts designated hereby have been
transferred to SRFG pursuant to this Additional Assignment.
4. Acceptance by SRFG. SRFG hereby acknowledges its
acceptance of all right, title and interest previously held by
Sears in and to the Receivables now existing and hereafter
created in the Additional Accounts designated hereby. SRFG
further acknowledges that, prior to or simultaneously with the
execution and delivery of this Additional Assignment, Sears
delivered to SRFG the computer file, hard copy or microfiche list
described in Section 2 of this Additional Assignment.
5. Amendment of the Receivables Warehouse Agreement.
The Receivables Warehouse Agreement is hereby amended by
providing that all references to the "Receivables Warehouse
Agreement," to "this Agreement" and "herein" shall be deemed from
and after the Addition Date to be a dual reference to the
Receivables Warehouse Agreement as supplemented by this
Additional Assignment. Except as expressly amended hereby, all
of the representations, warranties, terms, covenants and
conditions of the Receivables Warehouse Agreement shall remain
unamended and shall continue to be, and shall remain, in full
force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-
compliance with any term or provision of the Receivables
Warehouse Agreement.
6. Counterparts. This Additional Assignment may be
executed in any number of counterparts all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this
Additional Assignment No. _____ to be duly executed and delivered
by their respective duly authorized officers on the day and year
first above written.
SEARS, XXXXXXX AND CO.
By:
Name:
Title:
SEARS
RECEIVABLES FINANCING GROUP, INC.
By:
Name:
Title:
ANNEX A-2
FORM OF ADDITIONAL ASSIGNMENT
ADDITIONAL ASSIGNMENT No. _____, dated as of _________,
19__, by Sears, Xxxxxxx and Co., a New York corporation
("Sears"), to Sears Receivables Financing Group, Inc., a Delaware
corporation ("SRFG"), pursuant to the Receivables Warehouse
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Sears and SRFG are parties to the Receivables
Warehouse Agreement, dated as of December 21, 1995 (hereinafter
as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Receivables
Warehouse Agreement");
WHEREAS, pursuant to the Receivables Warehouse
Agreement, Sears wishes to designate Additional Accounts to be
included as Accounts and SRFG wishes to purchase the Receivables
of such Additional Accounts, now existing and hereafter created
(as each such term is defined in the Receivables Warehouse
Agreement).
NOW THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and
covenants contained herein, SRFG and Sears hereby agree as
follows:
1. Defined Terms. All capitalized terms defined in
the Receivables Warehouse Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, ________, 19___.
"Additional Account Cut-Off Date" shall mean, with
respect to the Additional Accounts designated hereby, the first
day of the Due Period ending in ________________, 19__.
2. Designation of Additional Accounts. Sears does
hereby deliver herewith a computer file, hard copy or microfiche
list containing a true and complete list of each credit account
which as of the Additional Account Cut-Off Date shall be deemed
to be an Additional Account, such accounts being identified by
account number. Such list is marked as Schedule 1 to this
Additional Assignment and is hereby incorporated into and made a
part of this Additional Assignment and Schedule 1 attached to the
Receivables Warehouse Agreement.
3. Conveyance of Receivables.
(a) Sears hereby sells, transfers, assigns and
otherwise conveys to SRFG, without recourse, all right, title and
interest of Sears in and to the Receivables existing on and after
the Additional Account Cut-Off Date and thereafter created in the
Additional Accounts designated hereby, all monies due or to
become due or to become due with respect thereto, and all
proceeds (as defined in Section 9-306 of the UCC as in effect in
the State of Illinois) of such Receivables and Insurance
Proceeds, if any, relating thereto. In the event such sale,
transfer, assignment or conveyance is deemed not to constitute a
valid transfer and assignment to SRFG of all right, title and
interest of Sears in and to such property, Sears does hereby
grant to SRFG a security interest therein.
(b) In connection with such sale, Sears agrees to
record and file, at its own expense, a financing statement with
respect to the Receivables now existing and hereafter created in
the Additional Accounts designated hereby (which may be a single
financing statement with respect to all such Receivables) for the
sale of accounts, general intangibles or chattel paper 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 in
such manner and in such jurisdictions as are necessary to perfect
the sale and assignment of such Receivables to SRFG, and to
deliver a file-stamped copy of such financing statement or other
evidence of such filing (which may, for purposes of this Section
3, consist of telephone confirmation of such filing) to SRFG on
or prior to the date of this Additional Assignment.
(c) In connection with such sale, Sears further
agrees, at its own expense, on or prior to the date of this
Additional Assignment to indicate, or to cause to be indicated,
in Sears computer files or in the computer files of an affiliate
of Sears, as applicable, that Receivables created in connection
with the Additional Accounts designated hereby have been sold to
SRFG pursuant to this Additional Assignment.
4. Acceptance by SRFG. SRFG hereby acknowledges its
acceptance of all right, title and interest previously held by
Sears in and to the Receivables now existing and hereafter
created in the Additional Accounts designated hereby. SRFG
further acknowledges that, prior to or simultaneously with the
execution and delivery of this Additional Assignment, Sears
delivered to SRFG the computer file, hard copy or microfiche list
described in Section 2 of this Additional Assignment.
5. Amendment of the Receivables Warehouse Agreement.
The Receivables Warehouse Agreement is hereby amended by
providing that all references to the "Receivables Warehouse
Agreement," to "this Agreement" and "herein" shall be deemed from
and after the Addition Date to be a dual reference to the
Receivables Warehouse Agreement as supplemented by this
Additional Assignment. Except as expressly amended hereby, all
of the representations, warranties, terms, covenants and
conditions of the Receivables Warehouse Agreement shall remain
unamended and shall continue to be, and shall remain, in full
force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-
compliance with any term or provision of the Receivables
Warehouse Agreement.
6. Counterparts. This Additional Assignment may be
executed in any number of counterparts all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this
Additional Assignment No. _____ to be duly executed and delivered
by their respective duly authorized officers on the day and year
first above written.
SEARS, XXXXXXX AND CO.
Name:
Title:
SEARS RECEIVABLES FINANCING GROUP, INC.
Name:
Title:
ANNEX B
FORM OF ASSIGNMENT OF RECEIVABLES OF TRUST ACCOUNTS
ASSIGNMENT OF RECEIVABLES OF TRUST ACCOUNTS No. _____,
dated as of _________, 19__, by Sears, Xxxxxxx and Co., a New
York corporation ("Sears"), to Sears Receivables Financing Group,
Inc., a Delaware corporation ("SRFG"), (the "Trust Account
Assignment") pursuant to the Receivables Warehouse Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, Sears and SRFG are parties to the Receivables
Warehouse Agreement, dated as of December 21, 1995 (hereinafter
as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Receivables
Warehouse Agreement");
WHEREAS, Sears and SRFG are parties to the Purchase
Agreement dated __________, 19__ (the "Purchase Agreement") and
the Contribution Agreement dated _____, 19__ (the "Contribution
Agreement").
WHEREAS, pursuant to the Receivables Warehouse
Agreement, Sears wishes to designate the Accounts, the
Receivables in which were transferred to SRFG by Sears pursuant
to the Purchase Agreement and the Contribution Agreement, as
Additional Accounts to be included as Accounts under the
Receivables Warehouse Agreement and SRFG wishes to hold the
Receivables of such Additional Accounts, now existing and
hereafter created, pursuant to the terms of the Receivables
Warehouse Agreement (as each such term is defined in the
Receivables Warehouse Agreement).
NOW THEREFORE, in consideration of the foregoing, other
good and valuable consideration and the mutual terms and
covenants contained herein, SRFG and Sears hereby agree as
follows:
1. Defined Terms. All capitalized terms defined in
the Receivables Warehouse Agreement and used herein shall have
such defined meanings when used herein, unless otherwise defined
herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, ________, 19___.
"Additional Account Cut-Off Date" shall mean, with
respect to the Additional Accounts designated hereby, the Cut-Off
Date.
"Additional Contributed Receivables" shall mean those
Receivables transferred to SRFG by Sears pursuant to the
Contribution Agreement.
"Additional Receivables Purchase Price" shall mean the
amount paid by SRFG to Sears under the Purchase Agreement.
"Cut-Off Date" shall mean, with respect to the
Additional Accounts designated hereby, the first day of the Due
Period ending in ________________, 19__.
"Original Agreement Date" shall mean, with respect to
the Additional Accounts designated hereby, ________________,
19__.
2. Designation of Additional Accounts. Sears does
hereby deliver herewith a computer file, hard copy or microfiche
list containing a true and complete list of each credit account
which as of the Additional Account Cut-Off Date shall be deemed
to be an Additional Account, such accounts being identified by
account number. Such list is marked as Schedule 1 to this Trust
Account Assignment and is hereby incorporated into and made a
part of this Trust Account Assignment and Schedule 1 attached to
the Receivables Warehouse Agreement.
3. Conveyance of Receivables.
(a) (1) Sears hereby confirms that it has sold,
transferred, assigned and otherwise conveyed to SRFG, without
recourse, all right, title and interest of Sears in and to the
Receivables (other than the Additional Contributed Receivables)
existing on and after the Cut-Off Date and thereafter created in
the Additional Accounts designated hereby, all monies due or to
become due or to become due with respect thereto, and all
proceeds (as defined in Section 9-306 of the UCC as in effect in
the State of Illinois) of such Receivables and Insurance
Proceeds, if any, relating thereto. In the event such sale,
transfer, assignment or conveyance is deemed not to constitute a
valid transfer and assignment to SRFG of all right, title and
interest of Sears in and to such property, Sears does hereby
confirm that it has granted and does hereby grant to SRFG a
security interest therein.
(2) Sears hereby confirms that it has
transferred, assigned and otherwise conveyed to SRFG, without
recourse, all right, title and interest of Sears in and to the
Additional Contributed Receivables existing as of the Cut-Off
Date and thereafter created, all monies due or to become due with
respect thereto and all proceeds (as defined in Section 9-306 of
the UCC as in effect in the State of Illinois) of such
Receivables and Insurance Proceeds, if any, relating thereto. In
the event such transfer, assignment or conveyance is deemed not
to constitute a valid transfer and assignment to SRFG of all
right, title and interest of Sears in and to such property, Sears
does hereby confirm that it has granted and does hereby grant to
SRFG a security interest therein to secure the obligations of
Sears under this Agreement.
(b) In connection with such confirmation of the sale
or transfer, Sears agrees to record and file, at its own expense,
a financing statement with respect to the Receivables now
existing and hereafter created in the Additional Accounts
designated hereby (which may be a single financing statement with
respect to all such Receivables) for the sale of accounts,
general intangibles or chattel paper 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 in such manner
and in such jurisdictions as are necessary to perfect the sale
and assignment of such Receivables to SRFG, and to deliver a file-
stamped copy of such financing statement or other evidence of
such filing (which may, for purposes of this Section 3, consist
of telephone confirmation of such filing) to SRFG on or prior to
the date of this Trust Account Assignment.
(c) In connection with such confirmation of the sale
or transfer, Sears further agrees, at its own expense, on or
prior to the date of this Trust Account Assignment to indicate,
or to cause to be indicated, in Sears computer files or in the
computer files of an affiliate of Sears, as applicable, that
Receivables created in connection with the Additional Accounts
designated hereby have been sold or transferred to SRFG as
confirmed in this Trust Account Assignment.
4. Receivables Purchase Price. In consideration for
the Receivables in the Additional Accounts (except the Additional
Contributed Receivables) and payment by Sears of all expenses of
SRFG incurred in connection with the establishment of the Trusts
pursuant to the applicable Pooling and Servicing Agreements
(regardless of the amount of such expenses), SRFG (i) paid to
Sears the Additional Receivables Purchase Price, (ii) hereby
confirms that it has agreed and hereby agrees to loan (without
further action of SRFG) to Sears all Collections in respect of
the Receivables in Additional Accounts without interest until
such funds are to be disbursed by Sears as Servicer to or on
behalf of SRFG as Seller in accordance with the terms of each
applicable Pooling and Servicing Agreement, which loan shall be
payable to SRFG on demand.
5. Acceptance by SRFG. SRFG hereby acknowledges its
acceptance of all right, title and interest previously held by
Sears in and to the Receivables now existing and hereafter
created in the Additional Accounts designated hereby. SRFG
further acknowledges that, prior to or simultaneously with the
execution and delivery of this Trust Account Assignment, Sears
delivered to SRFG the computer file, hard copy or microfiche list
described in Section 2 of this Trust Account Assignment.
6. Amendment of the Receivables Warehouse Agreement.
The Receivables Warehouse Agreement is hereby amended by
providing that all references to the "Receivables Warehouse
Agreement," to "this Agreement" and "herein" shall be deemed from
and after the Addition Date to be a dual reference to the
Receivables Warehouse Agreement as supplemented by this Trust
Account Assignment. Except as expressly amended hereby, all of
the representations, warranties, terms, covenants and conditions
of the Receivables Warehouse Agreement shall remain unamended and
shall continue to be, and shall remain, in full force and effect
in accordance with its terms and except as expressly provided
herein shall not constitute or be deemed to constitute a waiver
of compliance with or consent to non-compliance with any term or
provision of the Receivables Warehouse Agreement.
7. Counterparts. This Trust Account Assignment may
be executed in any number of counterparts all of which taken
together shall constitute one and the same instrument.
8. Replacement of Other Agreements. This agreement
replaces and supersedes the Purchase and Contribution Agreements,
which shall no longer have any force and effect; provided,
however, that any transfer of receivables, grant of security
interests, loan or contribution of receivables contained therein
shall survive and is hereby confirmed.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Receivables of Trust Accounts to be duly executed
and delivered by their respective duly authorized officers on the
day and year first above written.
SEARS, XXXXXXX AND CO.
Name:
Title:
SEARS RECEIVABLES FINANCING GROUP, INC.
Name:
Title:
