SEARS, ROEBUCK AND CO. Servicer and SRFG, INC. Seller AMENDMENT NO. 2 TO FIRST AMENDED AND RESTATED PURCHASE AGREEMENT amending FIRST AMENDED AND RESTATED PURCHASE AGREEMENT Dated as of July 31, 1994 Dated as of July 20, 2001 SEARS CREDIT ACCOUNT...
SEARS, ▇▇▇▇▇▇▇ AND CO.
Servicer
and
SRFG, INC.
Seller
AMENDMENT NO. 2 TO
FIRST AMENDED AND RESTATED PURCHASE AGREEMENT
amending
FIRST AMENDED AND RESTATED PURCHASE AGREEMENT
Dated as of July 31, 1994
Dated as of July 20, 2001
_______________________________________________________
SEARS CREDIT ACCOUNT MASTER TRUST
II
RECITALS
WHEREAS, the parties hereto entered into that certain First Amended and Restated Purchase Agreement, dated as of July 31, 1994, as amended (the "Purchase Agreement"), by and between Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation ("Sears") and SRFG, Inc., formerly Sears Receivables Financing Group, Inc., a Delaware corporation ("SRFG");
WHEREAS, Sears desires to sell, assign, transfer and otherwise convey interchange fees associated with certain co-branded general purpose credit card accounts on the same terms and conditions as for Receivables, and SRFG agrees to accept such interchange fees on the same terms and conditions as the Receivables.
WHEREAS, Sears and SRFG desire to effect certain other amendments to the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, THIS AMENDMENT WITNESSETH that, for and in consideration of the above premises, Sears and SRFG agree as follows:
I. Definitions.
Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement.
II. Amendment to Definitions. The following definitions are hereby amended as follows:
A. "Account." The definition of "Account"
is amended and restated in its entirety to read as follows:
"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 (including, without limitation, any general purpose
or co-branded credit cards and Sears MasterCard accounts), receivables
under which are transferred to the SRFG pursuant to this Agreement or the
Contribution Agreement. Unless SRFG otherwise elects pursuant to the Pooling
and Servicing Agreement, 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 the Pooling and Servicing Agreement. 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 (as defined in the Pooling and
Servicing Agreement) 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 Addition Date with respect thereto. The definition of Account
shall not include any Account the Receivables in which are removed from
the Trust pursuant to the Pooling and Servicing Agreement after it has
been reassigned to SRFG.
B. "Additional Account Cut-Off Date."
The definition of "Additional Account Cut-Off Date" is amended and restated
in its entirety to read as follows:
"Additional Account Cut-Off Date" for any Additional Account shall
mean the date specified as such in the Assignment of Additional Accounts
for such Additional Account.
C. "Collections." The definition of
"Collections" is amended and restated in its entirety to read as follows:
"Collections" shall mean (i) all payments including Coverage Proceeds,
if any, by or on behalf of an Obligor 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 the 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 the
relevant Credit Agreement in effect from time to time, (ii) amounts treated
as Collections pursuant to various provisions of the Pooling and Servicing
Agreement and (iii) all amounts realized by Sears on account of Interchange.
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.
D. "Due Period." The definition of "Due Period"
is amended and restated in its entirety to read as follows:
"Due Period" shall mean the monthly period beginning on the first
day of any calendar month and ending on the last day of such calendar month.
When used with respect to any Distribution Date occurring on and after
February 15, 2001, the Due Period shall be the calendar month preceding
the calendar month in which such Distribution Date occurs and shall be
referred to herein as a "related Due Period."
E. "Finance Charge Receivables." The
definition of "Finance Charge Receivables" is amended and restated in its
entirety to read as follows:
"Finance Charge Receivables" with respect to any Account for any Due
Period will mean the amount recorded with respect to the Account as finance
charges and, if applicable, fees and other amounts treated as finance charges
on such Account for such Due Period.
F. "Insurance Proceeds." The
definition of "Insurance Proceeds" is hereby redefined as "Coverage Proceeds",
and the term "Coverage Proceeds" shall be substituted for each and every
occurrence of the term "Insurance Proceeds" in the Agreement; further,
the definition of "Coverage Proceeds" shall be restated in its entirety
to read as follows:
"Coverage Proceeds" shall mean (a) any amounts recovered pursuant
to any credit life insurance policies covering any Obligor with respect
to Receivables under such Obligor's Account, and (b) any amounts received
pursuant to any debt cancellation agreement covering any Obligor with respect
to Receivables under such Obligor's Account.
G. "Interchange." The definition of "Interchange"
is hereby inserted in its appropriate alphabetical position:
"Interchange" shall mean interchange fees or interchange reimbursement
fees, paid or payable to Sears National Bank with respect to the Accounts,
in its capacity as credit card issuer, in connection with cardholder purchases
of merchandise and services and cardholder cash advances.
H. The definition of "Receivable" is amended
and restated in its entirety to read as follows:
"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 (including, without limitation, if
applicable, cash advances, balance transfers or amounts owing under convenience
checks), 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
a Charged-Off Account or an Account in which the Receivables have been
repurchased pursuant to the Pooling and Servicing Agreement.
III. Amendment
to Section 2.01(a).
Section 2.01(a) is amended by deleting the second sentence of that section
and inserting the following as the second and third sentences thereof:
Effective as of July 20, 2001,
Sears hereby sells, transfers, assigns and otherwise conveys to SRFG, without
recourse, all right, title and interest of Sears in and to Interchange
existing as of July 20, 2001 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 Interchange, if
any, relating thereto. In the event that such sale, transfer, assignment
or conveyance pursuant to either of the preceding sentences is deemed to
create a security interest in the specified property, Sears does hereby
grant to SRFG a security interest therein.
IV. Miscellaneous.
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.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive
Officer
SEARS, ▇▇▇▇▇▇▇ AND CO.
as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer