Exhibit 4.1
EXECUTION COPY
DESIGNATION OF REMOVED ACCOUNTS AND
SIXTH AMENDMENT TO RECEIVABLES SALE
AGREEMENT
This DESIGNATION OF REMOVED ACCOUNTS
AND SIXTH AMENDMENT TO RECEIVABLES SALE AGREEMENT, dated as of
February 26, 2009 (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, the Fourth
Amendment to Receivables Sale Agreement, dated as of May 21,
2008, and the Designation of Removed Accounts and Fifth Amendment
to Receivables Sale Agreement, dated as of December 29, 2008
(as amended, the “ Receivables Sale Agreement
”);
WHEREAS the Subject Accounts (as
defined below) have been designated for removal;
WHEREAS pursuant to the Receivables
Sale Agreement, Seller wishes to remove from Buyer all Transferred
Receivables owned by Buyer in the Subject Accounts and to cause
Buyer to convey the Transferred Receivables of such Removed
Accounts, whether now existing or hereafter created, from Buyer to
PLT Holding, L.L.C. (“ PLT ”), as the designee
of Seller;
WHEREAS Buyer is willing to accept
such designation and to convey the Transferred Receivables in the
Removed Accounts to PLT subject to the terms and conditions hereof;
and
WHEREAS Buyer and Seller desire to
amend the Receivables Sale Agreement as set forth
herein;
NOW, THEREFORE, Seller and Buyer
hereby agree as follows:
1.
Defined Terms
. All terms defined in the
Receivables Sale 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,
February 26, 2009.
“ Removal Cut-Off Date
” means, with respect to the Removed Accounts,
February 21, 2009.
2.
Designation of Removed
Accounts . All
Accounts listed on Schedule 1 to this Designation (the
“ Subject 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 Receivables Sale Agreement as
required by Section 2.1(b) of the Receivables
Sale Agreement.
3.
Agreement to Convey of
Transferred Receivables to Seller’s Designee
. Buyer hereby agrees to
transfer, assign, set over and otherwise convey to PLT, 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 the requirement in
Section 2.7(a)(iv) of the Receivables Sale Agreement that
Accounts be chosen for removal on a random basis, the Subject
Accounts may be designated as Removed Accounts pursuant to this
Reassignment. Such Removed Accounts have been selected from
the Accounts relating to Sam’s Club Retailers, Wal-Mart
Retailers, JCPenney Retailers and Lowe’s Retailers and have
been selected for removal based on credit scores. The Seller
shall not be required to deliver an Officer’s Certificate
regarding the statements made in Section 2.7(a)(iv) in
connection with the Subject Accounts.
(b)
Notwithstanding anything to the
contrary in the Receivables Sale Agreement, Buyer and PLT, 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 PLT.
(c)
Notwithstanding the definition of
“Account Schedule” in the Receivables Sale 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:
Removal Designation and Sixth
Amendment to Receivables Sale
Agreement
(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 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 delivery hereof,
(i) this Designation shall be a part of the Receivables Sale
Agreement and (ii) each reference in the Receivables Sale
Agreement to “this Agreement”, “hereof”,
“hereunder” or words of like import, and each reference
in any other Related Document to the Receivables Sale Agreement,
shall mean and be a reference to such Receivables Sale Agreement as
amended hereby.
(b)
Except as expr
