EXECUTION COPY
OMNIBUS TRUST DOCUMENTS ASSIGNMENT AND ASSUMPTION AGREEMENT,
dated as of November 3, 2003 (the "Omnibus Assignment and Assumption Agreement")
among Sears, Xxxxxxx and Co., a New York corporation (the "Transferring
Servicer"), SRFG, Inc., a Delaware corporation (the "Transferring Seller"),
Citibank (South Dakota), National Association , a national banking association
(the "New Servicer"), Citi Omni-S Finance LLC, a Delaware limited liability
company (the "New Seller"), and The Bank of New York (successor to The First
National Bank of Chicago), as Trustee (the "Trustee").
RECITALS
WHEREAS, the Transferring Servicer, the Transferring Seller
and the Trustee are parties to a Pooling and Servicing Agreement (the "Master
Pooling Agreement"), dated as of July 31, 1994, as amended by the amendments
identified on Exhibit A attached hereto (the "Amendments") and the assignments
of additional accounts identified on Exhibit B attached hereto (the
"Assignments"), and as supplemented by the Series Supplements identified on
Exhibit C attached hereto (as amended by the Omnibus Amendment to Series
Supplements identified on Exhibit C, the "Series Supplements," and the Master
Pooling Agreement, as so amended and supplemented, the "Pooling Agreement").
WHEREAS, the Transferring Seller and the Trustee are parties
to an Assignment of Additional Funds, dated as of January 30, 1998 (the
"Assignment of Additional Funds").
WHEREAS, the Transferring Seller, the Transferring Servicer,
Bank One, National Association and the Trustee are parties to an Instrument of
Resignation, Appointment, and Acceptance, dated as of December 3, 2001 (the
"Instrument of Resignation, Appointment and Acceptance", together with the
Pooling Agreement and the Assignment of Additional Funds, the "Trust
Documents").
WHEREAS, the Transferring Seller owns the Seller Certificate
(as such term is defined in the Pooling Agreement).
WHEREAS, the Transferring Servicer, the Transferring Seller,
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 Servicer, Citicorp and the New Servicer are parties to a Xxxx of
Sale and Assignment and Assumption Agreement (the "Servicer Xxxx of Sale"),
dated as of the date first set forth above, whereby the Transferring Servicer is
selling, assigning, transferring and conveying certain assets of the
Transferring Servicer to the New Servicer.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Seller, Citicorp and the New Seller are parties to a Xxxx of Sale
and Assignment and Assumption Agreement (the "Seller Xxxx of Sale"), dated as of
the date first set forth above, whereby the
Transferring Seller is selling, assigning, transferring and conveying certain
assets of the Transferring Seller to the New Seller.
WHEREAS, the Transferring Seller intends to assign to the New
Seller all of its right, title and interest and delegate all of its duties and
obligations that are incurred or accrue on or after the date hereof, in each
case as Seller, in, to and under the Pooling Agreement, the Assignment of
Additional Funds and the Instrument of Resignation, Appointment and Acceptance.
WHEREAS, the Transferring Servicer intends to assign to the
New Servicer 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 each
case as Servicer, in, to and under the Pooling Agreement and the Instrument of
Resignation, Appointment and Acceptance.
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 Omnibus Assignment
and Assumption Agreement, all defined terms used herein, including the Recitals
hereto, shall have the meanings ascribed to such terms in the Pooling Agreement.
SECTION 2. (a) The Transferring Seller does hereby assign all
of its right, title and interest, and delegate all of its duties and obligations
that are incurred or accrue on or after the date hereof, in each case as Seller,
in, to and under the Pooling Agreement (including the Seller Certificate), the
Assignment of Additional Funds and the Instrument of Resignation, Appointment
and Acceptance, to the New Seller; provided that to the extent that any duty or
obligation of the Seller under any of the Pooling Agreement (including the
Seller Certificate), the Assignment of Additional Funds or the Instrument of
Resignation, Appointment and Acceptance is a Retained Liability (as defined in
the Purchase Agreement), such duties or obligations are not hereby conveyed to
the New Seller, but remain with the Transferring Seller.
(b) The New Seller accepts all such assigned right, title and
interest, assumes all such duties and obligations (excluding any Retained
Liabilities) and agrees that it shall be substituted for the Transferring
Seller, as Seller, under the Pooling Agreement, the Assignment of Additional
Funds and the Instrument of Resignation, Appointment and Acceptance.
(c) The Trustee, the Transferring Servicer and the New
Servicer hereby severally (i) acknowledge and consent to the assignment and
delegation made above, (ii) acknowledge and agree that as of the date hereof,
the New Seller has been substituted for the Transferring Seller under each of
the Pooling Agreement, the Assignment of Additional Funds and the Instrument of
Resignation, Appointment and Acceptance and (iii) release the Transferring
Seller from all of its duties and obligations under such documents (excluding
any Retained Liabilities and any duties or obligations that were incurred or
accrued prior to the date hereof).
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SECTION 3. (a) The Transferring Servicer 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 each
case as Servicer, in, to and under the Pooling Agreement and the Instrument of
Resignation, Appointment and Acceptance, to the New Servicer; provided that to
the extent that any duty and obligation of the Servicer under either the Pooling
Agreement or the Instrument of Resignation, Appointment and Acceptance is a
Retained Liability (as defined in the Purchase Agreement), such duties or
obligations are not hereby conveyed to the New Servicer, but remain with the
Transferring Servicer.
(b) The New Servicer 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
Servicer, as Servicer, under the Pooling Agreement and the Instrument of
Resignation, Appointment and Acceptance.
(c) The Trustee, the Transferring Seller and the New Seller
hereby severally (i) acknowledge and consent to the assignment and delegation
made above, (ii) acknowledge and agree that as of the date hereof, the New
Servicer has been substituted for the Transferring Servicer under each of the
Pooling Agreement and the Instrument of Resignation, Appointment and Acceptance
and (iii) release the Transferring Servicer from all of its duties and
obligations under such documents (excluding any Retained Liabilities and any
duties or obligations that were incurred or accrued prior to the date hereof).
SECTION 4. (a) The New Seller hereby acknowledges that the
Transferring Seller has transferred to the New Seller any right, title and
interest retained by the Transferring Seller in and to (i) the Receivables
existing as of the Cut-Off Date (or with respect to Additional Accounts, as of
the applicable Additional Account Cut-Off Date) and thereafter created, all
monies due or to become due with respect thereto, all proceeds (as defined in
Article 9 of the UCC as in effect in the State of New York) 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 UCC as in effect in
the State of New York) of Interchange, if any, relating thereto.
(b) The New Seller hereby confirms, affirms and ratifies the
sale, transfer, assignment, set over, conveyance and pledge contained in the
Pooling Agreement and, as Seller under the Pooling Agreement, the New Seller
hereby sells, transfers, assigns and otherwise conveys to the Trust for the
benefit of the Certificateholders, without recourse, all right, title and
interest of the New Seller in and to (i) the Receivables existing as of the
Cut-Off Date (or with respect to Additional Accounts, as of the applicable
Additional Account Cut-Off Date) and thereafter created, all monies due or to
become due with respect thereto, all proceeds (as defined in Article 9 of the
UCC as in effect in the State of New York) 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 UCC as in effect in the
State of New York) of Interchange, if any, relating thereto.
(c) The New Seller, as Seller under the Pooling Agreement,
hereby grants to the Trustee, on behalf of the Trust, for the benefit of the
Certificateholders, a first priority perfected security interest in all of New
Seller's right, title and interest in and to (i)the
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Receivables existing as of the Cut-Off Date (or with respect to Additional
Accounts, as of the applicable Additional Account Cut-Off Date) and thereafter
created, all monies due or to become due with respect thereto, all proceeds (as
defined in Article 9 of the UCC as in effect in the State of New York) 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 UCC as in
effect in the State of New York) of Interchange, if any, relating thereto.
SECTION 5. The Trustee hereby acknowledges its acceptance on
behalf of the Trust, for the benefit of the Certificateholders, of all right,
title and interest in and to the property, now existing and hereafter created,
conveyed to the Trust pursuant to Section 4(c) of this Omnibus Assignment and
Assumption Agreement and declares that it shall maintain such right, title and
interest, upon the trust set forth in the Pooling Agreement for the benefit of
the Certificateholders. The Trustee also hereby acknowledges its acceptance on
behalf of the Trust, for the benefit of the Certificateholders, of a security
interest in all right, title and interest in and to the property, now existing
and hereafter created, granted to the Trustee pursuant to Section 4(c) of this
Omnibus Assignment and Assumption Agreement and declares that it shall maintain
such right, title and interest upon the Trust set forth in the Agreement for the
benefit of all the Certificateholders.
SECTION 6. Each of the Transferring Seller and the
Transferring Servicer 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 Omnibus Assignment
and Assumption Agreement.
SECTION 7. This Omnibus Assignment and Assumption Agreement
shall become effective upon receipt by the New Seller, the New Servicer and the
Trustee of the following, each of which shall be reasonably satisfactory to such
party:
(a) notification in writing from each Rating Agencies that the
terms of this Omnibus Assignment and Assumption Agreement shall not result in a
Ratings Event; and
(b) counterparts of this Omnibus Assignment and Assumption
Agreement duly executed by the parties hereto.
SECTION 8. This Omnibus 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 Omnibus Assignment and Assumption Agreement
shall be construed in accordance with the internal laws of the State of New
York, without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
[Signature page follows]
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IN WITNESS WHEREOF, the Transferring Seller, the Transferring Servicer,
the Trustee, the New Seller and the New Servicer have caused this Omnibus
Assignment and Assumption Agreement to be duly executed by their respective
officers as of the date first set forth above.
SRFG, INC.,
as Transferring Seller
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
SEARS, XXXXXXX AND CO.,
as Transferring Servicer
By: /s/ Xxxxx X Xxxxxxx
-------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Agent
CITI OMNI-S FINANCE LLC,
as New Seller
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
CITIBANK (SOUTH DAKOTA), NATIONAL ASSOCIATION,
as New Servicer
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[Signature page to Omnibus Assignment and Assumption Agreement]
Exhibit A
Pooling Agreement Amendments
----------------------------
1. Amendment No. 1 to the Pooling and Servicing Agreement, dated as of
March 31, 1995.
2. Amendment No. 2 to the Pooling and Servicing Agreement, dated as of
December 21, 1995.
3. Amendment No. 3 to the Pooling and Servicing Agreement, dated as of
September 28, 2000.
4. Amendment No. 4 to the Pooling and Servicing Agreement, dated as of
December 7, 2000.
5. Amendment No. 5 to the Pooling and Servicing Agreement, dated as of
July 20, 2001.
6. Amendment No. 6 to the Pooling and Servicing Agreement, dated as of
November 3, 2003.
A-1
Exhibit B
Assignments
-----------
1. Assignment No. 1 of Additional Accounts, dated as of October 26, 1994,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
2. Assignment No. 2 of Additional Accounts, dated as of July 19, 1995, by
SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
3. Assignment No. 3 of Additional Accounts, dated as of November 10, 1995,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
4. Assignment No. 4 of Additional Accounts, dated as of December 21, 1995,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
5. Assignment No. 5 of Additional Accounts, dated as of April 24, 1996, by
SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
6. Assignment No. 6 of Additional Accounts, dated as of November 15, 1996,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
7. Assignment No. 7 of Additional Accounts, dated as of August 15, 1997,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
8. Assignment No. 8 of Additional Accounts, dated as of June 29, 1998, by
SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
9. Assignment No. 9 of Additional Accounts, dated as of July 31, 2000, by
SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
10. Assignment No. 10 of Additional Accounts, dated as of January 31, 2001,
by SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
11. Assignment No. 11 of Additional Accounts, dated as of April 6, 2001, by
SRFG, Inc. to Bank One, National Association (formerly, The First
National Bank of Chicago).
12. Assignment No. 12 of Additional Accounts, dated as of September 28,
2001, by SRFG, Inc. to Bank One, National Association (formerly, The
First National Bank of Chicago).
13. Assignment No. 13 of Additional Accounts, dated as of April 30, 2002,
by SRFG, Inc. to The Bank of New York (as successor trustee to Bank
One, National Association (formerly known as The First National Bank of
Chicago)).
14. Assignment No. 14 of Additional Accounts, dated as of November 11, 2002,
by SRFG, Inc. to The Bank of New York (as successor trustee to Bank One,
National Association (formerly known as The First National Bank of
Chicago)).
B-1
Exhibit C
Series Supplements
------------------
1. Series 1995-5 Supplement, dated as of December 12, 1995, to the Pooling
and Servicing Agreement.
2. Series 1996-3 Supplement, dated as of August 6, 1996, to the Pooling and
Servicing Agreement.
3. Series 1996-5 Supplement, dated as of December 16, 1996, to the Pooling
and Servicing Agreement.
4. Series 1997-1 Supplement, dated as of July 31, 1997, to the Pooling and
Servicing Agreement.
5. Series 1998-2 Supplement, dated as of November 9, 1998, to the Pooling
and Servicing Agreement.
6. Series 1999-1 Supplement, dated as of March 23, 1999, to the Pooling and
Servicing Agreement.
7. Series 1999-3 Supplement, dated as of November 23, 1999, to the Pooling
and Servicing Agreement.
8. Series 2000-1 Supplement, dated as of June 7, 2000, to the Pooling and
Servicing Agreement.
9. Series 2000-2 Supplement, dated as of September 28, 2000, to the Pooling
and Servicing Agreement.
10. Series 2000-3 Supplement, dated as of November 2, 2000, to the Pooling
and Servicing Agreement.
11. Series 2000-4 Supplement, dated as of November 2, 2000, to the Pooling
and Servicing Agreement.
12. Series 2001-1 Supplement, dated as of March 8, 2001, to the Pooling and
Servicing Agreement.
13. Series 2001-2 Supplement, dated as of June 15, 2001, to the Pooling and
Servicing Agreement.
14. Series 2001-3 Supplement, dated as of October 1, 2001, to the Pooling
and Servicing Agreement.
15. Series 2002-1 Supplement, dated as of February 22, 2002, to the Pooling
and Servicing Agreement.
C-1
16. Series 2002-2 Supplement, dated as of May 8, 2002, to the Pooling and
Servicing Agreement.
17. Series 2002-3 Supplement, dated as of June 13, 2002, to the Pooling and
Servicing Agreement.
18. Series 2002-4 Supplement, dated as of September 12, 2002, to the Pooling
and Servicing Agreement.
19. Series 2002-5 Supplement, dated as of December 3, 2002, to the Pooling
and Servicing Agreement.
20. Omnibus Amendment to Series Supplement, dated as December 1, 2002 among
SFRG, Inc. as Seller, Sears Xxxxxxx and Co. as Servicer, and the Bank of
New York, as Trustee.
C-2
