EXECUTION COPY
SEARS, XXXXXXX AND CO.
Servicer
SRFG, INC.
Seller
and
THE BANK OF NEW YORK
Trustee
on behalf of the Certificateholders
AMENDMENT NO. 6
Dated as of November 3, 2003
amending
POOLING AND SERVICING AGREEMENT
Dated as of July 31, 1994
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CITIBANK OMNI-S MASTER TRUST
(formerly known as the Sears Credit Account Master Trust II)
RECITALS
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WHEREAS, the parties hereto have entered into that certain Pooling and
Servicing Agreement, dated as of July 31, 1994, as amended (the "Agreement"), by
and among Sears, Xxxxxxx and Co., a New York corporation, as Servicer ("Sears"),
SRFG, Inc. (formerly Sears Receivables Financing Group, Inc.), a Delaware
corporation, as Seller ("SRFG") and The Bank of New York, a New York banking
corporation, as successor to Bank One National Association (formerly The First
National Bank of Chicago), as Trustee (the "Trustee");
WHEREAS, Sears, SRFG and the Trustee desire to effect certain
amendments to the Agreement pursuant to Section 13.01 of the 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 with the Trustee as
follows:
I. Definitions.
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Capitalized terms not otherwise defined herein shall have the meaning
ascribed to them in the Agreement, as amended hereby.
II. Amendments to Section 1.01.
--------------------------
(a) Section 1.01 of the Agreement is amended by deleting the defined
terms "Bank", "Credit Guidelines", "Investor Accounts", "Permitted Investments"
and "Sears" in their entirety and substituting in lieu thereof the following:
""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;
provided, however, that following a transfer of the role of Servicer pursuant to
Section 13.08, the new Servicer may, with the prior approval of the Seller,
apply some or all of the policies and procedures of the prior Servicer during a
transition period of no more than 30 days following such transfer of the role of
Servicer."
""Bank" shall mean initially Sears National Bank, a national banking
association, and following the transfer of the Accounts to another bank, such
other bank shall be deemed to be the Bank."
""Investor Accounts" shall mean the Collections Account, the Group
Collections Accounts, the Excess Funding Account (General), the Excess Funding
Account (SRC) and any other accounts specified as Investor Accounts in any
applicable Series Supplement."
""Permitted Investments" shall mean:
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(a) negotiable instruments or investment property that
evidences: (i) obligations issued or fully guaranteed, as to timely
payment, by the United States of America or any instrumentality or
agency thereof when such obligations are backed by the full faith and
credit of the United States of America; (ii) time deposits in, or
bankers' acceptances issued by, any depository institution or trust
company incorporated under the laws of the United States of America or
any state thereof (or any domestic branch of a foreign bank) and
subject to supervision and examination by federal or state banking or
depository institution authorities; provided, however, that at the time
of the Trust's investment or contractual commitment to invest therein,
the short-term deposits or commercial paper of such depository
institution or trust company shall have the Highest Rating; (iii)
commercial paper or other short-term obligations having, at the time of
the Trust's investment or contractual commitment to invest therein, the
Highest Rating; or (iv) investments in money market or common trust
funds having the Highest Rating;
(b) demand deposits in the name of the Trust or the Trustee in
any depository institution or trust company referred to in clause
(a)(ii) above;
(c) securities not represented by an instrument, which (i) are
registered in the name of the Trustee upon books maintained for that
purpose by or on behalf of the issuer thereof and identified on books
maintained for that purpose by the Trustee as held for the benefit of
the Trust or the Certificateholders, and consisting of shares of an
open end diversified investment company that is registered under the
Investment Company Act of 1940, as amended, and that (A) invests its
assets exclusively in obligations of or guaranteed by the United States
of America or any instrumentality or agency thereof having in each
instance a final maturity date of less than one year from their date of
purchase or other Permitted Investments; (B) seeks to maintain a
constant net asset value per share and (C) has aggregate net assets of
not less than $100,000,000 on the date of purchase of such shares and
(ii) will not result in a Ratings Event as confirmed in writing by the
Rating Agencies;
(d) a guaranteed investment contract (guaranteed as to timely
payment), investment in which will not cause a Ratings Event;
(e) repurchase agreements transacted with either
(i) an entity subject to the United States federal
bankruptcy code, provided that (A) the term of the repurchase
agreement is consistent with the requirements set forth in
Section 4.02(c) with regard to the maturity of Permitted
Investments or is due on demand, (B) the Trustee has
possession of the collateral, (C) the Trustee on behalf of the
Trust has a perfected first priority security interest in the
collateral, (D) the market value of the collateral is
maintained at the requisite collateral percentage of the
obligation in accordance with standards of the Rating
Agencies, (E) the failure to maintain the requisite collateral
level will obligate the Trustee to liquidate the collateral
immediately, (F) the securities subject to the repurchase
agreement are either obligations of or fully guaranteed as to
principal and interest by, the United States of America or any
instrumentality or agency thereof, certificates of deposit or
bankers acceptances and (G) the
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securities subject to the repurchase agreement are free and
clear of any third party lien or claim; or
(ii) a financial institution insured by the FDIC, or
any broker-dealer with "retail customers" that is under the
jurisdiction of the Securities Investors Protection Corp.
("SIPC"), provided that (A) the market value of the collateral
is maintained at the requisite collateral percentage of the
obligation in accordance with the standards of the Rating
Agencies, (B) the Trustee has possession of the collateral,
(C) the Trustee on behalf of the Trust has a perfected first
priority security interest in the collateral, (D) the
collateral is free and clear of third party liens and, in the
case of an SIPC broker, was not acquired pursuant to a
repurchase or reverse repurchase agreement and (E) the failure
to maintain the requisite collateral percentage will obligate
the Trustee to liquidate the collateral; provided, however,
that at the time of the Trust's investment or contractual
commitment to invest in any repurchase agreement, the
short-term deposits or commercial paper rating of such entity
or institution in subsections (i) and (ii) shall have a credit
rating not lower than the Highest Rating; and
(f) any other investment that will not cause a Ratings Event;
Permitted Investments shall include, without limitation,
securities of Sears or any of its affiliates that otherwise qualify as
a Permitted Investment under clause (a), (b), (c), (d), (e) or (f)
above."
""Sears" shall mean initially Sears, Xxxxxxx and Co., a New York
corporation, and its successors and assigns, including, for all purposes under
this Agreement, other than Sections 9.01(c) and (d), any entity that becomes the
Servicer in connection with any transfer effected pursuant to Section 13.08."
""SRFG" shall mean SRFG, Inc., a Delaware corporation, and its
successors and assigns, including any Person that becomes the Seller in
connection with any transfer effected pursuant to Section 7.02."
(B) Section 1.01 of the Agreement is amended by adding the
following in the appropriate alphabetical order:
""Amendment Date" shall mean November 3, 2003."
III. Amendment to Section 2.04.
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(a) The initial paragraph of Section 2.04 of the Agreement is
amended and restated to read in its entirety as follows:
"SECTION 2.04 Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the Trust, in the case of
subsections (a) through (c) and (f) through (g) below, as of the date
of this Agreement and the Initial Closing Date, in the case of
subsections (d) and (e) below, as of the dates specified therein and in
the case of subsections (h) through (l) below, as of the Amendment
Date, that:"
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(b) Section 2.04(a) of the Agreement is amended and restated to
read in its entirety as follows:
"(a) Organization, etc. The Seller 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."
(c) Section 2.04 of the Agreement is amended and restated by
adding the following subsections beneath subsection (g) therein:
"(h) This Agreement creates either (A) a valid transfer to the
Trust of all right, title and interest of the Seller in, to and under
the Receivables conveyed to the Trust pursuant to Section 2.01 of this
Agreement, and such property will be held by the Trust free and clear
of any Lien of any Person claiming through or under the Seller, except
for (x) Liens permitted pursuant to subsection (j) below, or (y) the
interests of the Seller as holder of the Seller Certificate or (B) a
valid and continuing security interest (as defined in the applicable
UCC) in the Receivables in favor of the Trust, which is enforceable
with respect to the Receivables at the time such Receivables arise in
the Accounts. If this Agreement constitutes the grant of a security
interest to the Trust in the Receivables, such security interest is
prior to all other Liens (other than Liens permitted pursuant to
subsection (j) below).
(i) The Receivables constitute "accounts" within the meaning
of the applicable UCC.
(j) Immediately prior to the conveyance of the Receivables
pursuant to this Agreement, the Seller owns and has good and marketable
title to, or has a valid security interest in, the Receivables free and
clear of any Lien, claim or encumbrance of any Person; provided that
nothing in this subsection (j) shall prevent or be deemed to prohibit
the Seller from suffering to exist upon any of the Receivables any
Liens for any taxes if such taxes shall not at the time be due and
payable or if their validity is being contested in good faith by
appropriate proceedings and adequate reserves with respect thereto have
been set aside by the taxpayer.
(k) The Seller has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the transfer of
the Receivables from the Seller to the Trust, and the security interest
granted to the Trust under this Agreement in the Receivables arising
hereunder.
(l) Other than the transfer of the Receivables to the Trust
pursuant to this Agreement, the Seller has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the
Receivables. Other than in connection with the transfer of the
Receivables to the Trust pursuant to this Agreement, the Seller has not
authorized the filing of and is not aware of any financing statements
against the Seller that include a description of collateral covering
the Receivables."
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(c) The final paragraph of Section 2.04 of the Agreement is
amended and restated to read in its entirety as follows:
"Notwithstanding any other provision of this Agreement, the
representations and warranties set forth in subsections (a) through (g)
above shall survive the transfer and assignment of the Receivables to
the Trust, and the representations and warranties set forth in
subsections (h) through (l) above shall be continuing, and remain in
full force and effect, until such time as all Investor Certificates
have been finally and fully paid. In the event that any of the
representations and warranties set forth in subsections (h) through (l)
above is breached, the Trustee covenants that it shall not waive such
breach without first confirming that such waiver will not result in a
Ratings Event with respect to Standard & Poors."
IV. Amendment to Section 3.03(a).
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Section 3.03(a) of the Agreement is amended and restated to read in its
entirety as follows:
"(a) Organization, etc. The Servicer 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."
V. Amendments to Section 4.02.
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(a) Section 4.02(a) of the Agreement is amended and restated to read in its
entirety as follows:
"(a) Establishment of the Collections Account, the Group
Collections Accounts and the Excess Funding Accounts. The Trustee, for
the benefit of Certificateholders, shall cause to be established and
maintained in the name of the Trust either (i) non-interest bearing
segregated trust accounts with the corporate trust department of an
office or branch of a Qualified Trust Institution or (ii) non-interest
bearing segregated deposit accounts or securities accounts with an
Eligible Institution. One account shall be designated the "Collections
Account," one account shall be designated the "Excess Funding Account
(SRC)," one account shall be designated for each Group (each, a "Group
Collections Account"), in each case marked to indicate clearly that the
funds deposited therein and property credited thereto are held by the
Trustee for the benefit of the Certificateholders. Subject to
subsection (c) below, the Trust shall possess all right, title and
interest in all property from time to time credited to and all funds
from time to time on deposit in the Collections Account, the Excess
Funding Account (General), the Excess Funding Account (SRC) and each
Group Collections Account and in all proceeds thereof. Pursuant to
authority granted to it pursuant to Section 3.01(b), the Servicer shall
have the revocable power to instruct the Trustee to withdraw funds from
the Collections Account, the Excess Funding Account (General), the
Excess Funding Account (SRC)
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and the Group Collections Accounts for the purpose of carrying out the
duties of the Servicer hereunder. The Servicer at all times shall
maintain accurate records reflecting each transaction in the
Collections Account, the Excess Funding Account (General), the Excess
Funding Account (SRC) and the Group Collections Accounts."
(b) Section 4.02(c) of the Agreement is amended and restated to read in its
entirety as follows:
"(c) Administration of Trust Property and the Investor
Accounts. Except as otherwise provided in a relevant Series Supplement,
any funds on deposit in any Investor Account for more than one Business
Day shall at all times be invested in Permitted Investments at the
written direction of the Seller or its agent, subject to the
restrictions set forth below. The Trustee shall hold or maintain all
property of the Trust, including all Permitted Investments, such that
the Trustee at all times has a first-priority perfected security
interest in such property. Any Permitted Investment with a stated
maturity shall mature on or prior to the next Distribution Date related
to the earliest Due Period (or such other date as the Rating Agencies
shall permit) in which Collections invested in such Permitted
Investment were received. Withdrawals from the Collections Account
pursuant to any applicable Series Supplement shall be deemed to be made
from Collections in the order in which such Collections were deposited
in the Collections Account. On each applicable Distribution Date, all
interest and earnings (less investment expenses) on funds on deposit in
any Investor Account, if any, shall be deposited by the Trustee in the
Collections Account. For purposes of determining the availability of
funds or the balances in such Investor Accounts for any reason under
this Agreement or any Series Supplement, all investment earnings on
such funds shall be deemed not to be available or on deposit. If at any
time any Investor Account shall be located at an institution that fails
to meet the qualification requirements for an Eligible Institution or a
Qualified Trust Institution, as applicable, the Trustee shall move or
cause to be moved such Investor Account to an institution meeting the
requisite qualifications requirements within ten Business Days of the
date the Trustee becomes aware of such lack of qualification."
VI. Amendment to Section 6.08(b).
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Section 6.08(b) of the Agreement is amended and restated to read in its
entirety as follows:
"(b) If there shall be delivered to the Seller and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Seller or the Trustee that such
Certificate has been acquired by a protected purchaser, the Seller
shall execute and upon its request the Trustee shall authenticate and
deliver (in the case of a Bearer Certificate, outside the United
States), in lieu of any such destroyed, lost or stolen Certificate, a
Certificate of the same Class and Series, of a like Fractional
Undividend Interest and bearing a number not contemporaneously
outstanding."
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VII. Amendment to Section 7.07.
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Section 7.07 of the Agreement is amended and restated to read in its
entirety as follows:
"Other Indebtedness. Except for the issuance of additional Series of
Investor Certificates pursuant to Section 6.07, the Seller shall not incur any
additional debt, other than any indebtedness to the Servicer or Affiliate of the
Servicer, in each case in connection with the acquisition of Receivables as
specifically contemplated by this Agreement (which indebtedness shall be
subordinated to all other obligations of the Seller), unless it has been advised
by the Rating Agencies that the incurrence of such debt will not result in a
Ratings Event."
VIII. Amendments to Section 13.02.
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(a) Section 13.02(b) of the Agreement is amended and restated to read in
its entirety as follows:
"(b) Within fifteen days after the Seller makes any change in
its name or its type or jurisdiction of organization, the Seller shall
give the Trustee notice of any such change and shall file such
financing statements or amendments as may be necessary to continue and
maintain the perfection of the Trust's security interest in the
Receivables and the proceeds thereof."
(b) Section 13.02(c) of the Agreement is amended and restated to
read in its entirety as follows:
"(c) Each of the Seller and the Servicer will give the Trustee
prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables. Each
of the Seller and the Servicer shall at all times maintain its
principal executive office within the United States of America."
IX. Amendment to Section 13.08.
--------------------------
Section 13.08 of the Agreement is amended and restated to read in its
entirety as follows:
"This Agreement, including any Series Supplement, may not be
assigned by the Servicer except (a) as provided in Section 7.05,
Section 8.02 and Section 8.06, (b) in connection with a change in
Seller pursuant to Section 7.02, in which case such assignment shall
not be effective until the Servicer has been advised by the Rating
Agencies that such transaction would not result in a Ratings Event or
(c) with the prior consent of Holders of Investor Certificates
evidencing Fractional Undivided Interests aggregating not less than 51%
of the Class Invested Amount of each Class of each Series of Investor
Certificates on a Class-by-Class basis."
X. Amendment to Exhibit G.
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Exhibit G of the Agreement is amended and restated to read in its
entirety as follows:
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"With the filing of financing statements covering the
Receivables in the offices of the Secretary of State of Delaware, the
security interest of the Trustee in the Receivables has been duly
perfected. No other action is required to continue such perfection
prior to the six month period preceding the fifth anniversary of the
filing of such financing statements."
XI. Amendment to the Agreement.
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The Agreement is hereby amended by deleting each instance of the words
"Sears Credit Account Master Trust II" wherever they may appear and replacing
them with the words "Citibank Omni-S Master Trust".
XII. Effectiveness.
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This Amendment shall become effective upon receipt by the Seller, the
Servicer and the Trustee 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 Amendment shall not result in a Ratings Event; and
(b) counterparts of this Amendment duly executed by the
parties hereto.
XIII. 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 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, Sears and the Trustee have caused this
amendment to be duly executed by their respective officers as of the date first
set forth above.
SRFG, INC.
as Seller
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
SEARS, XXXXXXX AND CO.
as Servicer
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Agent
[Signature Page to Amendment No. 6 to the Pooling and Servicing Agreement]
