PROSPECTUS SUPPLEMENT This Prospectus Supplement,
DATED MAY 15, 1995 filed pursuant to Rule 424(b)(3),
TO PROSPECTUS DATED relates to Registration Statement
SEPTEMBER 26, 1991, AS No. 33-42664 and Prospectus
SUPPLEMENTED THROUGH dated September 26, 1991
APRIL 17, 1995
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 15, 1995
Sears Credit Account Trust 1991 D
(Exact name of registrant as specified in charter)
Illinois 33-42664-01 Not Applicable
(State of (Commission (IRS Employer
Organization) File Number) Identification No.)
c/o Sears Receivables Financing Group, Inc.
3711 Kennett Pike
Greenville, Delaware 19807
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, including area code: (302) 888-3176
Former name, former address and former fiscal year, if changed
since last report: Not Applicable
<PAGE>
Item 5. Other Events
On May 15, 1995, Registrant made available the Monthly
Investor Certificateholders' Statement set forth as Exhibit 21.
Item 7. Financial Statements and Exhibits
21. Monthly Investor Certificateholders' Statement related
to the distribution of May 15, 1995 and reflecting the
performance of the Trust during the Due Period ended
in April 1995, which will accompany the distribution
on May 15, 1995.
99(a). First Amended and Restated Contribution Agreement dated as
of October 3, 1991.
99(b). First Amended and Restated Purchase Agreement dated as of
October 3, 1991.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Sears Credit Account Trust 1991 D
(Registrant)
By: Sears Receivables Financing Group, Inc.
(Originator of the Trust)
By: /S/Jerome J. Leshne
Jerome J. Leshne
Vice President, Administration
Date: May 15, 1995<PAGE>
EXHIBIT INDEX
Exhibit No.
21. Monthly Investor Certificateholders'
Statement - (May 15, 1995).
99(a). First Amended and Restated Contribution Agreement
dated as of October 3, 1991.
99(b). First Amended and Restated Purchase Agreement dated as
of October 3, 1991.
Exhibit 21
SEARS CREDIT ACCOUNT TRUST 1991 D
MONTHLY INVESTOR CERTIFICATEHOLDERS' STATEMENT
7.75% CREDIT ACCOUNT
PASS-THROUGH CERTIFICATES
Under the Pooling and Servicing Agreement dated as of
September 15,1991, by and among Sears, Roebuck and Co.("Sears"), Sears
Receivables Financing Group, Inc. and Bank of America Illinois, as Trustee, the
Trustee is required to prepare certain information each month regarding current
distributions to Investor Certificateholders and the performance of the Trust
during the previous month.The information which is required to be prepared with
respect to the distribution of May 15, 1995
(the current Distribution Date") and with respect to the performance of the
Trust during the Due Period ended April, 1995 (the "related
Due Period") is set forth below. Certain of the information is presented on
the basis of an original principal amount of $1,000 per Investor
Certificate. Certain other information is presented based on the aggregate
amount for the Trust as a whole.
A.Information Regarding the Current Monthly Distribution
(Stated on the Basis of $1,000 Original Principal Amount).
1.The total amount of the distribution to Investor
Certificateholders on the current Distribution Date
per $1,000 interest..... $0.000000000
2.The amount of the distribution set forth in paragraph
1 above in respect of interest on the Investor
Certificates, per $1,000 interest....... $0.000000000
3.The amount of the distribution set forth in paragraph
1 above in respect of principal on the Investor
Certificates, per $1,000 interest........... $0.000000000
B.Information Regarding the Performance of the Trust.
1.Collections of Receivables.
(a)The aggregate amount of Collections of
Finance Charge Receivables processed
during the related Due Period........... $9,689,628.04
(b)The aggregate amount of Collections of
Principal Receivables processed during the
related Due Period........................... $32,628,889.21
(c)The aggregate amount of Collections of Finance
Charge Receivables processed during the
related Due Period which were allocated in
respect of the Investor Certificates..... $7,995,089.28
(d)The aggregate amount of Collections of
Principal Receivables processed during the
related Due Period which were allocated
in respect of the Investor Certificates.... $25,733,454.78
(e)The aggregate amount of Collections of Finance
Charge Receivables processed during the
related Due Period which were allocated
in respect of the Seller Certificate..... $1,694,538.76
(f)The aggregate amount of Collections of
Principal Receivables processed during the
related Due Period which were allocated
in respect of the Seller Certificate.............. $6,895,434.43
2.Principal Receivables in the Trust; Principal
Funding Account.
(a)The aggregate amount of Principal Receivables
in the Trust as of the end of the related
Due Period (which reflects the Principal
Receivables represented by both the Seller
Certificate and the Investor Certificates)..... $606,373,574.60
(b)The amount of Principal Receivables in the
Trust represented by the Investor Certificates
(the "Investor Interest") as of the end of the
related Due Period ................. $333,333,333.28
(c)The Investor Interest set forth in paragraph
2(b) above as a percentage of the aggregate
amount of Principal Receivables set forth in
paragraph 2(a) above............................... 54.97%
(d)The Invested Amount as of the end of the
current Distribution Date.............................$500,000,000.00
(e)The total amount to be deposited in the
Principal Funding Account in respect of
Collections of Principal Receivables on such
Distribution Date............................. $20,833,333.34
(f)The total amount on deposit in the Principal
Funding Account in respect of Collections of
Principal Receivables on such Distribution Date
(after giving effect to the deposit referred to
in paragraph 2(e))......................... $166,666,666.72
(g)The total amount of Investment Income since
the last Distribution Date......................... $678,025.57
(h)The Deficit Accumulation Amount (after giving
effect to the deposit referred to in paragraph 2(e) $0.00
3.Interest Funding Account.
(a)The total amount to be deposited in the
Interest Funding Account in respect of
Certificate Interest on such Distribution Date.. $3,229,166.67
(b)The total amount on deposit in the Interest
Funding Account in respect of Certificate
Interest on such Distribution Date (after
giving effect to the deposit referred to in
paragraph 3 (a))....................... $6,458,333.34
4.Investor Charged-Off Amount.
(a)The aggregate amount of Receivables charge-
off as uncollectible during the related Due
Period allocable to the Investor Certificates
(the "Investor Charged-Off Amount").............. $1,339,390.47
(b)The Aggregate Investor Charged-Off Amount.. $0.00
5.Investor Losses; Reimbursement of Charge-Offs.
(a)The excess of the Investor Charged-Off Amount
set forth in paragraph 3(a) above over the sum
of (i) payments in respect of the Available
Subordinated Amount and (ii) Excess Servicing,
if any (an "Investor Loss")........................... $0.00
(b)The amount of the Investor Loss set forth in
paragraph 4(a) above, per $1,000 interest
(which will have the effect of reducing, pro
rata, the amount of each Investor Certificate-
holder's investment).................................. $0.00
(c)The total amount reimbursed to the Trust in
the current month from the sum of the Available
Subordinated Amount and Excess Servicing, if
any, in respect of Investor Losses in prior
months................................................ $0.00
(d)The amount set forth in paragraph 4(c) above,
per $1,000 interest (which will have the effect
of increasing, pro rata, the amount of each
Investor Certificateholder's investment).............. $0.00
(e)The aggregate amount of Investor Losses in
the Trust as of the end of the current
Distribution Date..................................... $0.00
(f)The amount set forth in paragraph 4(e) above,
per $1,000 interest (which will have the effect
of reducing, pro rata, the amount of each
Investor Certificateholder's investment)............ $0.00
6.Investor Servicing Fee.
The aggregate amount of the Investor Monthly
Servicing Fee payable by the Trust to the
Servicer for the related Due Period................... $590,277.78
7.Available Subordinated Amount.
(a)The amount available to be applied pursuant
to Section 4.03 as of the end of the current
Distribution Date..................................... $42,500,000.00
(b)The amount set forth in paragraph 6(a) above
as a percentage of the Invested Amount....... 8.50%
8.Investor Excess Spread Analysis
$ % (1)
Allocated Yield (2) $8,673,114.85 20.82%
Less:
Certificate Interest (3) $3,229,166.67 7.75%
Servicing Fees (4) $590,277.78 1.42%
Allocated Charge-Offs (5) $1,339,390.47 3.21%
Subtotal $5,158,834.92 12.38%
Excess Spread $3,514,279.93 8.43%
(1) Annualized percentage of the Invested Amount at the beginning
of the related Due Period.
(2) Section B1(c) plus Section B2(g) above
(3) See Section B3(a) above
(4) See Section B6 above
(5) See Section B4(a) above
Note: Payment rate (aggregate collections/beg. receivables
balance) for the related Due Period: 6.87%
C.The Pool Factor.
The Pool Factor (which represents the ratio of the
amount of the Invested Amount as of the end of
the day on the current Distribution Date to the
amount of the Investor Interest as of the Closing
Date). The amount of an Investor Certificate-
holder's pro rata share of the Invested Amount
can be determined by multiplying the original
denomination of the Holder's Investor Certificate
by the Pool Factor....................................... 1.0000000
BANK OF AMERICA ILLINOIS,
as Trustee
By:/S/ C.K. Duncan
Title: Vice President
Exhibit 99(a)
FIRST AMENDED AND RESTATED CONTRIBUTION AGREEMENT
This FIRST AMENDED AND RESTATED CONTRIBUTION AGREEMENT is
made as of this 3rd day of October, 1991, by and between SEARS, ROEBUCK
AND CO., a New York corporation ("Sears"), having its office at Sears
Tower, Chicago, Illinois 60684 and SEARS RECEIVABLES FINANCING GROUP,
INC., a Delaware corporation ("SRFG"), having its office at 3711 Kennett
Pike, Greenville, Delaware 19807.
WHEREAS, Sears and SRFG are parties to the Contribution
Agreement dated as of October 3, 1991 by and between Sears and SRFG (the
"Original Contribution Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the
Original Contribution Agreement to permit Sears to contribute additional
capital to SRFG in the form of Receivables;
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 or the Purchase
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 Additional Account Cut-Off Date with respect
thereto.
"Account Selection Date" shall mean, for any Account, the
last day of the Due Period ending in June 1991.
"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 5.03.
"Additional Account Cut-Off Date" shall have the meaning
specified in Section 5.03 hereof.
"Additional Accounts" shall have the meaning specified in
Section 5.03 hereof.
"Additional Assignment" shall have the meaning specified in
Section 5.03 hereof.
"Agreement" shall mean this First Amended and Restated
Contribution Agreement and all amendments hereof and supplements hereto.
"Billing Cycle" shall mean, with respect to any Account, the
billing cycle for such Account as determined by Sears or the applicable
affiliate of Sears in accordance with its normal practice.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York,
Chicago, Illinois, Phoenix, Arizona or the city in which the Corporate
Trust Office (as defined in the Pooling and Servicing Agreement) is
located, are authorized or obligated by law or executive order to be
closed.
"Charged-Off Account" shall mean each Account with respect
to which the Receivables in such Account have been charged-off as
uncollectible.
"Closing Date" shall mean the closing date of the
transactions contemplated under Section 2.01 of the Pooling and
Servicing Agreement.
"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 the 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 that portion of the
Receivables transferred to SRFG pursuant to this Agreement.
"Credit Agreement" shall mean, with respect to an Account,
the contract governing such Account.
"Cut-Off Date" shall mean, for any Account, the last day of
the Due Period ending in August 1991. The Cut-Off Dates for the
Accounts are sometimes collectively referred to as the "Cut-Off Date."
"Date of Processing" shall mean with respect to any
transaction, 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 October 15, 1991 and the 15th
day of each calendar month thereafter, or, if such 15th day is not a
Business Day, the next succeeding Business Day.
"Due Period" shall mean, with respect to any Account at any
time, 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.
"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.
"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 the Pooling and
Servicing Agreement by and among Sears as Servicer, SRFG as Seller and
Bank of America Illinois (formerly Continental Bank, National
Association) as Trustee, dated as of September 15, 1991, as amended,
providing for the issuance of credit account pass-through certificates.
"Purchase Agreement" shall mean the First Amended and
Restated Purchase Agreement between Sears and SRFG dated as of the
Closing Date and all amendments thereof and supplements thereto.
"Receivable" shall mean any amount owing by the Obligors
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 receivable in a Charged-
Off Account.
"Sears" shall mean Sears, Roebuck and Co., a New York
corporation, and its successors and assigns.
"Seller Interest" on any date of determination, shall mean
the Seller Interest on such date as defined in the Pooling and Servicing
Agreement.
"SRFG" shall mean Sears Receivables Financing Group, Inc., a
Delaware corporation, its successors and assigns.
"Trustee" shall mean the institution executing the Pooling
and Servicing Agreement as Trustee, or its successors 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
CONTRIBUTION OF RECEIVABLES AS CAPITAL
Section 2.01 Contribution of Receivables. In reliance upon
the representations and warranties of SRFG contained herein, and subject
to the terms and conditions set forth herein, Sears hereby contributes
certain of the Receivables in an amount equal to the Seller Interest as
of the Closing Date to SRFG. Simultaneously with the Closing Date
transactions pursuant to the Pooling and Servicing Agreement, Sears
hereby transfers, assigns and otherwise conveys to SRFG, without
recourse, all right, title and interest of Sears in and to the
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 grant to SRFG a security interest therein to secure the
obligations of Sears under this Agreement and the Purchase Agreement.
Section 2.02 The Closing. The contribution of the
Contributed Receivables shall take place at a closing (the "Closing") at
the offices of Latham & Watkins, 5800 Sears Tower, Chicago, Illinois
60606 on the Closing Date, simultaneously with the closings under the
Purchase Agreement and the Pooling and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 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, 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 3.02. 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, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditors' rights generally,
general principles of equity (whether considered in a proceeding at law
or in equity) or 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
true and accurate in every material respect or based on reasonable
estimates on the date as of which such information is stated or
certified.
ARTICLE IV
ADDITIONAL ACTS
Section 4.01 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
contributed to SRFG pursuant to this Agreement or sold to SRFG pursuant
to the Purchase Agreement and deliver to SRFG (or to the Trustee on
SRFG's behalf), a computer file, hard copy or microfiche list containing
a true and complete list of all such Accounts, identified by account
number.
Section 4.02 Evidence of UCC Filing. Simultaneously
herewith, 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 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.
Section 4.03 Receipt. Simultaneously herewith, SRFG shall
deliver to Sears a receipt acknowledging the assignment to it of the
Contributed Receivables.
ARTICLE V
COVENANTS OF SEARS
Sears agrees with SRFG as follows; provided, however, that
to the extent that any provision of this Article V conflicts with any
provision of the Pooling and Servicing Agreement, the Pooling and
Servicing Agreement shall govern:
Section 5.01 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 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
5.01(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 5.02 Security Interests. Except for the
conveyances hereunder and pursuant to the Purchase Agreement and the
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 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 Cut-Off Date or thereafter
created, against all claims of third parties claiming through or under
Sears; provided, however, that Sears obligations under this Section 5.02
shall terminate upon the termination of the Sears Credit Account Trust
1991 D pursuant to the Pooling and Servicing Agreement. The conveyance
of existing or future Receivables to SRFG, or grant of a security
interest therein, under this Agreement 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 5.03 Additional Accounts. Any designation of
additional credit accounts ("Additional Accounts") to be contributed to
SRFG by Sears pursuant hereto and pursuant to the Purchase Agreement
shall be effective as of the Additional Account Cut-Off Date specified
by SRFG and set forth in the Additional Assignment (as defined below),
and shall be accomplished by the delivery to SRFG by Sears of an
executed written assignment (the "Additional Assignment") substantially
in the form of Annex A hereto and a computer file, hard copy or
microfiche list containing a true and complete list of all Additional
Accounts identified by account number.
Section 5.04 Contribution of Add-ons. Sears hereby
contributes to SRFG, on each Distribution Date, all Add-ons created in
the Accounts during the Due Period related to such Distribution Date
which Sears has elected (in a writing executed subsequent to the date of
this Agreement) to contribute to SRFG pursuant to this Agreement and the
Purchase Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01 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 6.02 Amendment. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by Sears
and SRFG. Sears and SRFG shall promptly give notice of any such
amendment to Moody's Investors Service Inc.
Section 6.03 Waivers. No failure or delay on the part of
SRFG in exercising any power, right or remedy under this Agreement 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 6.04 Notices. All communications and notices
pursuant hereto to either party shall be in writing or by telegraph or
telex 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 6.05 Costs and Expenses. 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 and continuation
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 6.06 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 6.07 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.
Section 6.08 Governing Law. This Agreement and each
assignment shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
Section 6.09 Effectiveness. The parties hereto shall deem
this Agreement to be effective as of October 3, 1991.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of this 31st day of March, 1995.
SEARS, ROEBUCK AND CO.
By:
Name: Alice M. Peterson
Title: Vice President and Treasurer
SEARS RECEIVABLES FINANCING GROUP, INC.
By:
Name: Larry R. Raymond
Title: Vice President, Finance
ANNEX A
FORM OF ADDITIONAL ASSIGNMENT
ADDITIONAL ASSIGNMENT No. _____, dated as of _________,
19__, by Sears, Roebuck and Co., a New York corporation ("Sears"), to
Sears Receivables Financing Group, Inc., a Delaware corporation ("SRFG")
pursuant to the Contribution Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Sears and SRFG are parties to the First Amended and
Restated Contribution Agreement, dated as of October 3, 1991
(hereinafter as such agreement may have been, or may from time to time
be, amended, supplemented or otherwise modified, the "Contribution
Agreement");
WHEREAS, pursuant to the Contribution Agreement and the
Purchase 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 Contribution 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
Contribution 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 Pooling and Servicing 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, the
Contribution Agreement and the Purchase 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 (or to the Trustee on
SRFG's behalf) the computer file, hard copy or microfiche list described
in Section 2 of this Additional Assignment.
5. Amendment of the Contribution Agreement. The
Contribution Agreement is hereby amended by providing that all
references to the "Contribution Agreement," to "this Agreement" and
"herein" shall be deemed from and after the Addition Date to be a dual
reference to the Contribution Agreement as supplemented by this
Additional Assignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the
Contribution 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 Contribution 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 of Additional Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and
year first above written.
SEARS, ROEBUCK AND CO.
By:
Name:
Title:
SEARS RECEIVABLES FINANCING GROUP, INC.
By:
Name:
Title:
Exhibit 99(b)
FIRST AMENDED AND RESTATED PURCHASE AGREEMENT
This FIRST AMENDED AND RESTATED PURCHASE AGREEMENT is made
as of this 3rd day of October, 1991, by and between SEARS, ROEBUCK AND
CO., a New York corporation ("Sears"), having its office at Sears Tower,
Chicago, Illinois 60684 and SEARS RECEIVABLES FINANCING GROUP, INC., a
Delaware corporation ("SRFG") having its office at 3711 Kennett Pike,
Greenville, Delaware 19807.
WHEREAS, SRFG desires to purchase certain Receivables from
Sears and Sears desires to sell such Receivables to SRFG;
WHEREAS, Sears and SRFG are parties to the Purchase
Agreement dated as of October 3, 1991, by and between Sears and SRFG
(the "Original Purchase Agreement"); and
WHEREAS, Sears and SRFG desire to amend and restate the
Original Purchase Agreement.
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 or the Contribution
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 Additional Account Cut-Off Date with respect
thereto.
"Account Selection Date" shall mean, for any Account, the
last day of the Due Period ending in June 1991.
"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 5.05 hereof.
"Additional Account Cut-Off Date" shall have the meaning
specified in Section 5.05 hereof.
"Additional Accounts" shall have the meaning specified in
Section 5.05 hereof.
"Additional Assignment" shall have the meaning specified in
Section 5.05 hereof.
"Agreement" shall mean this First Amended and Restated
Purchase Agreement and all amendments hereof and supplements hereto.
"Billing Cycle" shall mean, with respect to any Account, the
billing cycle for such Account as determined by Sears or the applicable
affiliate of Sears in accordance with its normal practice.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York,
Chicago, Illinois, Phoenix, Arizona or the city in which the Corporate
Trust Office (as defined in the Pooling and Servicing Agreement) is
located, are authorized or obligated by law or executive order to be
closed.
"Charged-Off Account" shall mean each Account with respect
to which the Receivables in such Account have been charged-off as
uncollectible.
"Closing Date" shall mean the closing date of the
transactions contemplated under Section 2.01 of the Pooling and
Servicing Agreement.
"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 the 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 that portion of the
Receivables transferred to SRFG pursuant to the Contribution Agreement.
"Contribution Agreement" shall mean the First Amended and
Restated Contribution Agreement between Sears and SRFG dated as of the
date hereof and all amendments thereof or supplements thereto.
"Credit Agreement" shall mean, with respect to an Account,
the contract governing such Account.
"Cut-Off Date" shall mean, for any Account, the last day of
the Due Period ending in August 1991. The Cut-Off Dates for the
Accounts are sometimes collectively referred to as the "Cut-Off Date."
"Date of Processing" shall mean, with respect to any
transaction, 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 October 15, 1991 and the 15th
day of each calendar month thereafter, or, if such 15th day is not a
Business Day, the next succeeding Business Day.
"Due Period" shall mean, with respect to any Account at any
time, 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, at the time of
the conveyance of such Receivable to SRFG, Sears will have good and
marketable title thereto free and clear of all Liens, and (iv) 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.
"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 5.06(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.
"Investor Certificates" shall mean the certificates executed
by SRFG and authenticated by the Trustee under the Pooling and Servicing
Agreement.
"Investor Interest" shall mean, on any date of
determination, the Investor Interest on such date under the Pooling and
Servicing Agreement.
"Investor Monthly Servicing Fee" shall have the meaning
specified in Section 3.02 of the Pooling and Servicing Agreement.
"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.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.02 of the Pooling and Servicing Agreement.
"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.
"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 the Pooling and
Servicing Agreement by and among Sears as Servicer, SRFG as Seller and
Bank of America Illinois (formerly Continental Bank, National
Association) as Trustee, dated as of September 15, 1991, as amended,
providing for the issuance of credit account pass-through certificates.
"Portfolio Repurchase Event" shall have the meaning set
forth in Section 5.06(a) hereof.
"Principal Receivable" shall mean each Receivable other than
Receivables in respect of finance charges.
"Receivable" shall mean any amount owing by the Obligors
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 receivable in a Charged-
Off Account.
"Receivable Repurchase Event" shall have the meaning set
forth in Section 5.06(c) hereof.
"Receivables Purchase Price" shall mean $497,277,500.
"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, Roebuck and Co., a New York
corporation, and its successors and assigns.
"Seller Interest" shall mean, on any date of determination,
the Seller Interest on such date under the Pooling and Servicing
Agreement.
"Seller Monthly Servicing Fee" shall have the meaning set
forth in Section 6.02 hereof.
"SRFG" shall mean Sears Receivables Financing Group, Inc., a
Delaware corporation and its successors and assigns.
"Trustee" shall mean the institution executing the 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 RECEIVABLES
Section 2.01 Purchase and Sale of Receivables.
(a) Transfer of Receivables. Simultaneously with the
Closing Date transactions pursuant to the Contribution Agreement and the
Pooling and Servicing Agreement, Sears hereby sells, transfers, assigns
and otherwise conveys 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 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 sale, transfer, assignment or conveyance is
deemed not be 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) 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 issuance of the
Investor Certificates pursuant to the Pooling and Servicing Agreement
(regardless of the amount of such expenses), SRFG (i) shall
simultaneously herewith pay to Sears the Receivables Purchase Price,
(ii) 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 the 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 6.03 hereof.
Section 2.02 The Closing. The sale and purchase of the
Receivables shall take place at a closing (the "Closing") at the offices
of Latham & Watkins, 5800 Sears Tower, Chicago, Illinois 60606 on the
Closing Date, simultaneously with the closings under the Contribution
Agreement and the Pooling and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 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, insolvency, reorganization, moratorium or similar laws now
or hereafter in effect relating to creditors' rights generally, general
principles of equity (whether considered in a proceeding at law or in
equity) or the discretion of the court before which any proceeding
therefor may be brought.
Section 3.02 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, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to creditors' rights generally,
general principles of equity (whether considered in a proceeding at law
or in equity) or 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 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 Closing Date, 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 Cut-Off Date, 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 IV
ADDITIONAL ACTS
Section 4.01 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 the
Contribution Agreement and deliver to SRFG (or to the Trustee on SRFG's
behalf) a computer file, hard copy or microfiche list containing a true
and complete list of all such Accounts, identified by account number.
Section 4.02 Evidence of UCC Filing. Simultaneously
herewith, 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.
Section 4.03 Receivables Purchase Price. Simultaneously
herewith, SRFG shall deliver to Sears the Receivables Purchase Price in
such manner as Sears may specify.
ARTICLE V
COVENANTS OF SEARS
Sears agrees with SRFG as follows, provided, however, that
to the extent that any provision of this Article V conflicts with any
provision of the Pooling and Servicing Agreement, the Pooling and
Servicing Agreement shall govern:
Section 5.01 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
5.01(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 5.02 Security Interests. Except for the
conveyances hereunder and pursuant to the Contribution Agreement and the
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 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 Cut-Off Date or thereafter
created, against all claims of third parties claiming through or under
Sears; provided, however, that Sears obligations under this Section 5.02
shall terminate upon the termination of the Sears Credit Account Trust
1991 D pursuant to the Pooling and Servicing Agreement. The conveyance
of existing or future Receivables to SRFG, or grant of a security
interest therein, under this Agreement 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 security interest in, such chattel paper, to the extent
necessary to fully perfect the interest of SRFG, in such Receivables.
Section 5.03 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 5.04 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 and the Contribution 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 VI hereof and in accordance with the 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 VI of this
Agreement and in accordance with the Contribution Agreement and the
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 VI hereof.
Section 5.05 Additional Accounts. Upon the request of
SRFG, Sears shall designate from time to time additional credit accounts
("Additional Accounts") of Sears to be included as Accounts and
contributed to SRFG pursuant to the Contribution Agreement or, at Sears
written election, sold to SRFG pursuant hereto. Any 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), and shall be accomplished by the delivery to SRFG by
Sears of an executed written assignment (the "Additional Assignment")
substantially in the form of Annex A to the Contribution Agreement (or,
if Sears has elected in writing to sell such additional accounts to
SRFG, substantially in the form of Annex A 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 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 6.03
hereof.
Section 5.06 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
insolvency, bankruptcy or other similar laws of general application
affecting the enforcement of creditors' rights in the case of the
insolvency, bankruptcy or similar event with respect to Sears or general
equity principles;
(ii) this Agreement or appropriate assignment, as the
case may be, constitutes a sale or transfer of the Receivables existing
as of the 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 3.02(a), (b) or (c) hereof are not true and correct and such
breach 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 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 the 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 3.02(d) or 3.02(e) hereof 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 of the last day of the immediately preceding
Due Period exceeds five percent of the interest of SRFG in the
Receivables 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.
(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. 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 the 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 5.07 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 VI
COLLECTIONS
Section 6.01 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;
provided, however, that such statement shall set forth (i) the amount of
Collections for the related Due Period and (ii) the amount of such
Collections owned by SRFG pursuant to the Pooling and Servicing
Agreement but retained by Sears as a loan from SRFG pursuant to Section
2.01(b) hereof.
Section 6.02 Servicing Fee. As compensation for its
servicing of the Accounts hereunder and under the Contribution Agreement
and the 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 Monthly Servicing Fee"),
payable in arrears on each Distribution Date in an amount equal to the
excess of the Monthly Servicing Fee over the Investor Monthly Servicing
Fee, as such terms are defined in the Pooling and Servicing Agreement.
Sears may deduct the Seller Monthly Servicing Fee from any funds
otherwise to be disbursed by Sears to SRFG pursuant to the Pooling and
Servicing Agreement 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 Monthly Servicing Fee.
Section 6.03 Purchase of Add-ons. On each Distribution
Date, after giving effect to any transactions on such day pursuant to
Article IV of the 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 to contribute such Add-ons to SRFG pursuant to the
Contribution Agreement. Such 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 VII
MISCELLANEOUS PROVISIONS
Section 7.01 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 7.02 Amendment. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by Sears
and SRFG. Sears and SRFG shall promptly give notice of any such
amendment to Moody's Investors Service Inc.
Section 7.03 Waivers. No failure or delay on the part of
SRFG in exercising any power, right or remedy under this Agreement or
any Additional 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 7.04 Notices. All communications and notices
pursuant hereto to either party shall be in writing or by telegraph or
telex 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 7.05 Costs and Expenses. In addition to paying all
expenses of SRFG incurred in connection with the issuance of the
Investor Certificates pursuant to the Pooling and Servicing Agreement,
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 7.06 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 7.07 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.
Section 7.08 Governing Law. This Agreement and each
assignment shall be governed by and construed in accordance with the
internal laws of the State of Illinois.
Section 7.09 Effectiveness. The parties hereto shall deem
this Agreement to be effective as of October 3, 1991. The Additional
Assignment No. 1, dated as of May 6, 1992, by Sears to SRFG, shall not
be affected hereby and shall be deemed to be an amendment hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of this 31st day of March, 1995.
SEARS, ROEBUCK AND CO.
By:
Name: Alice M. Peterson
Title: Vice President and Treasurer
SEARS RECEIVABLES FINANCING GROUP, INC.
By:
Name: Larry R. Raymond
Title: Vice President, Finance
ANNEX A
FORM OF ADDITIONAL ASSIGNMENT
ADDITIONAL ASSIGNMENT No. _____, dated as of _________,
19__, by Sears, Roebuck and Co., a New York corporation ("Sears"), to
Sears Receivables Financing Group, Inc., a Delaware corporation
("SRFG"), pursuant to the Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Sears and SRFG are parties to the First Amended and
Restated Purchase Agreement, dated as of October 3, 1991 (hereinafter as
such agreement may have been, or may from time to time be, amended,
supplemented or otherwise modified, the "Purchase Agreement");
WHEREAS, pursuant to the Purchase 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 Purchase
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
Purchase 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 Pooling and Servicing 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 (or to the Trustee on
SRFG's behalf) the computer file, hard copy or microfiche list described
in Section 2 of this Additional Assignment.
5. Amendment of the Purchase Agreement. The Purchase Agreement
is hereby amended by providing that all references to the "Purchase
Agreement," to "this Agreement" and "herein" shall be deemed from and
after the Addition Date to be a dual reference to the Purchase Agreement
as supplemented by this Additional Assignment. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants
and conditions of the Purchase 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 Purchase
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 of Additional Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and
year first above written.
SEARS, ROEBUCK AND CO.
By:
Name:
Title:
SEARS RECEIVABLES FINANCING GROUP, INC.
By:
Name:
Title:
