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Exhibit 4.1
DESIGNATION OF REMOVED ACCOUNTS AND
FIFTH AMENDMENT TO RECEIVABLES SALE AGREEMENT
This DESIGNATION OF REMOVED ACCOUNTS AND FIFTH
AMENDMENT TO RECEIVABLES SALE AGREEMENT, dated as of
December 29, 2008 (this " Designation "), is entered
into between GE MONEY BANK, a federal savings bank organized under
the laws of the United States, as Seller (" Seller "), and
RFS HOLDING, L.L.C., a limited liability company organized under
the laws of the State of Delaware (" Buyer "), pursuant to
the Receivables Sale Agreement referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the
Receivables Sale Agreement, dated as of June 27, 2003, as
amended by the Omnibus Amendment No. 1 to Securitization
Documents, dated as of February 9, 2004, the RSA Assumption
Agreement and Second Amendment to Receivables Sale Agreement, dated
as of February 7, 2005, the Third Amendment to Receivables
Sale Agreement, dated as of December 21, 2006, and the Fourth
Amendment to Receivables Sale Agreement, dated as of May 21,
2008 (as amended, the " Agreement ");
WHEREAS the Accounts, other than the Excluded
Accounts (as defined below), relating to the HSN Retailers (the "
HSN Accounts ") have been designated for purchase by the HSN
Retailers pursuant to the terms of the related Credit Card Program
Agreement;
WHEREAS charged-off accounts and certain other
categories of the HSN Accounts are not eligible for purchase by the
HSN Retailers (the " Excluded Accounts "); however Seller
wishes to designate such Excluded Accounts as Removed Accounts for
administrative convenience;
WHEREAS pursuant to the Agreement, Seller wishes to
remove from Buyer all Transferred Receivables owned by Buyer in the
HSN Accounts and to cause Buyer to convey the Transferred
Receivables of such Removed Accounts, whether now existing or
hereafter created, from Buyer to Monogram Credit Services, LLC ("
MCS "), as the designee of Seller;
WHEREAS Buyer is willing to accept such designation
and to convey the Transferred Receivables in the Removed Accounts
to MCS subject to the terms and conditions hereof; and
WHEREAS Buyer and Seller desire to amend the
Agreement as set forth herein;
NOW, THEREFORE, Seller and Buyer hereby agree as
follows:
1.
Defined Terms . All terms defined in the Agreement and
used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
" Removal Date " means, with respect to the
Removed Accounts designated hereby, December 29, 2008.
" Removal Cut-Off Date " means, with respect
to the Removed Accounts, December 28, 2008.
2.
Designation of Removed Accounts . All HSN Accounts are
designated as Removed Accounts pursuant to this Designation.
Schedule 1 to this Designation, as of the Removal Date,
shall supplement Schedule 1 to the Agreement as
required by Section 2.1(b) of the Agreement.
3.
Agreement to Convey of Transferred Receivables to Seller’s
Designee . Buyer hereby agrees to transfer, assign, set
over and otherwise convey to MCS, pursuant to the execution of an
assignment agreement substantially in the form of
Exhibit A attached hereto, on and after the Removal
Date, all right, title and interest of Buyer in, to and under the
Transferred Receivables existing at the close of business on the
Removal Cut-Off Date and thereafter created from time to time in
the Removed Accounts designated hereby, the Related Security and
Collections with respect thereto, together with all monies due or
to become due and all amounts received or receivable with respect
thereto and all Insurance Proceeds related thereto and all proceeds
of the foregoing.
4.
Amendments to Receivables Sale Agreement . (a)
Notwithstanding anything to the contrary in Section 2.7 of the
Agreement, the removal of the Excluded Accounts shall be deemed to
be an Involuntary Removal.
(b)
Notwithstanding anything to the contrary in the Agreement, Buyer
and MCS, as designee of Seller, may agree, pursuant to the
execution of an assignment agreement substantially in the form of
Exhibit A attached hereto, that the Transferred
Receivables existing at the close of business on the Removal
Cut-Off Date and thereafter created from time to time in the
Removed Accounts designated hereby, the Related Security and
Collections with respect thereto, together with all monies due or
to become due and all amounts received or receivable with respect
thereto and all Insurance Proceeds related thereto and all proceeds
of the foregoing, will be assigned by Buyer to MCS.
(c)
Notwithstanding the definition of "Account Schedule" in the
Agreement, the Account Schedule delivered in connection with the
Designation shall set forth the receivables balance for each
Removed Account as of the Removal Cut-Off Date, rather than the
Removal Notice Date.
5.
Representations and Warranties of Seller . Seller
hereby represents and warrants to Buyer as of the Removal Date:
(a)
Legal, Valid and Binding Obligation . This Designation
constitutes a legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the
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HSN Designation and Fifth
Amendment to Receivables Sale
Agreement
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enforcement of creditors’ rights in general
and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity); and
(b)
List of Removed Accounts . The list of Removed
Accounts attached hereto, is an accurate and complete listing in
all material respects of all the Removed Accounts as of the Removal
Cut-Off Date.
6.
Effectiveness . This Designation shall become
effective as of the date first written above; provided that
Buyer and Seller shall have executed a counterpart of this
Designation.
7.
Binding Effect; Ratification . (a) On and after
the execution and delive
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