EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO THE
RECEIVABLES WAREHOUSE AGREEMENT, dated as of November 3, 2003 (the "Receivables
Warehouse Assignment and Assumption Agreement") among Sears, Xxxxxxx and Co., a
New York corporation (the "Transferring Receivables Seller"), SRFG, Inc., a
Delaware corporation (the "Transferring Receivables Purchaser"), Citi Cards
South Dakota Acceptance Corp., a Delaware corporation (the "New Receivables
Seller") and Citi Omni-S Finance LLC, a Delaware limited liability company (the
"New Receivables Purchaser").
RECITALS
WHEREAS, the Transferring Receivables Seller and the
Transferring Receivables Purchaser are parties to the Receivables Warehouse
Agreement, dated as of December 21, 1995, as amended by Amendment No. 1 to the
Receivables Warehouse Agreement, dated as of July 20, 2001 and Amendment No. 2
to the Receivables Warehouse Agreement, dated as of November 3, 2003 (as so
amended, the "Receivables Warehouse Agreement").
WHEREAS, the Transferring Receivables Seller, the Transferring
Receivables 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 Receivables Seller, Citicorp and the New Receivables Seller are
parties to a Xxxx of Sale and Assignment and Assumption Agreement (the
"Receivables Seller Xxxx of Sale"), dated as of the date first set forth above,
whereby the Transferring Receivables Seller is selling, assigning, transferring
and conveying certain assets of the Transferring Receivables Seller to the New
Receivables Seller.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Receivables Purchaser, Citicorp and the New Receivables Purchaser
are parties to a Xxxx of Sale and Assignment and Assumption Agreement (the
"Receivables Purchaser Xxxx of Sale"), dated as of the date first set forth
above, whereby the Transferring Receivables Purchaser is selling, assigning,
transferring and conveying certain assets of the Transferring Receivables
Purchaser to the New Receivables Purchaser.
WHEREAS, the Transferring Receivables Seller intends to assign
to the New Receivables 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 Warehouse Agreement.
WHEREAS, the Transferring Receivables Purchaser intends to
assign to the New Receivables 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 Warehouse 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
Warehouse Assignment and Assumption Agreement, all defined terms used herein,
including the Recitals hereto, shall have the meanings ascribed to such terms in
the Receivables Warehouse Agreement.
SECTION 2. (a) The Transferring Receivables 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 Warehouse Agreement to the New Receivables Seller;
provided that to the extent that any duty or obligation of the Transferring
Receivables Seller under the Receivables Warehouse Agreement is a Retained
Liability (as defined in the Purchase Agreement), such duties or obligations are
not hereby conveyed to the New Receivables Seller, but remain with the
Transferring Receivables Seller.
(b) The New Receivables 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 Receivables Seller under the Receivables Warehouse Agreement.
(c) The Transferring Receivables Purchaser and the New
Receivables 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 Receivables Seller has been substituted for the
Transferring Receivables Seller under the Receivables Warehouse Agreement and
(iii) release the Transferring Receivables Seller from all of its duties and
obligations under the Receivables Warehouse 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 Receivables 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 Warehouse Agreement to the New Receivables
Purchaser; provided that to the extent that any duty or obligation of the
Transferring Receivables Purchaser under the Receivables Warehouse Agreement is
a Retained Liability (as defined in the Purchase Agreement), such duties or
obligations are not hereby conveyed to the New Receivables Purchaser, but remain
with the Transferring Receivables Purchaser.
(b) The New Receivables 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 Receivables Purchaser under the Receivables Warehouse Agreement.
(c) The Transferring Receivables Seller and the New
Receivables Seller hereby severally (i) acknowledge and consent to the
assignment and delegation made above,
2
(ii) acknowledge and agree that as of the date hereof, the New Receivables
Purchaser has been substituted for the Transferring Receivables Purchaser under
the Receivables Warehouse Agreement and (iii) release the Transferring
Receivables Purchaser from all of its duties and obligations under the
Receivables Warehouse Agreement (excluding any Retained Liabilities and any
duties or obligations that were incurred or accrued prior to the date hereof).
SECTION 4. (a) The New Receivables Seller hereby acknowledges
that the Transferring Receivables Seller has transferred to the New Receivables
Seller any right, title and interest retained by the Transferring Receivables
Seller in and to (i) the Receivables (other than the Contributed Receivables)
existing as of the applicable 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 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 Receivables Seller hereby confirms, affirms and
ratifies the sale, contribution, transfer, assignment and conveyance contained
in the Receivables Warehouse Agreement and, in accordance with the Receivables
Warehouse Agreement, the New Receivables Seller hereby sells, transfers, assigns
and otherwise conveys to the New Receivables Purchaser, without recourse, all
right, title and interest of the New Receivables Seller in and to (i) the
Receivables (other than the Contributed Receivables) existing as of the
applicable 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 Receivables Seller and the New Receivables
Purchaser intend that the conveyance of the Receivables, the Interchange, and
the other property by the New Receivables Seller to the New Receivables
Purchaser in accordance with the Receivables Warehouse 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 Receivables Seller hereby grants to the New Receivables
Purchaser, in accordance with the Receivables Warehouse Agreement, a security
interest in all of the New Receivables Seller's right, title and interest in and
to (i) the Receivables (other than the Contributed Receivables) existing as of
the applicable Cut-Off Dates (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.
3
SECTION 5. The New Receivables 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 Receivables Purchaser
pursuant to Section 4(b) of this Receivables Warehouse Assignment and Assumption
Agreement. The New Receivables 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 Receivables Purchaser
pursuant to Section 4(c) of this Receivables Warehouse Assignment and Assumption
Agreement.
SECTION 6. Each of the Transferring Receivables Seller and the
Transferring Receivables Purchaser agrees to do or take, or cause to be done or
taken, all such things and actions as any of the parties hereto may reasonably
request in order to effect more fully the transfers contemplated by this
Receivables Warehouse Assignment and Assumption Agreement.
SECTION 7. This Receivables Warehouse Assignment and
Assumption Agreement shall become effective upon receipt by the New Receivables
Seller and the New Receivables 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 Warehouse 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 Warehouse Assignment and
Assumption Agreement duly executed by the parties hereto.
SECTION 8. This Receivables Warehouse 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 Warehouse 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]
4
IN WITNESS WHEREOF, the Transferring Receivables Seller, the
Transferring Receivables Purchaser, the New Receivables Seller and the New
Receivables Purchaser have caused this Receivables Warehouse 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 Receivables Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
SRFG, INC.,
as Transferring Receivables Purchaser
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
CITI CARDS SOUTH DAKOTA ACCEPTANCE CORP.,
as New Receivables Seller
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
CITI OMNI-S FINANCE LLC,
as New Receivables Purchaser
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
[Signature page to Receivables Warehouse Assignment and Assumption Agreement]
