EXHIBIT 4.10


 


 




	
   

  	
   

  	
   

  






 


 


RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT


 


 


between


 


RFS
HOLDING, L.L.C.,


 


Seller,


 


and


 


RFS FUNDING TRUST,


 


Buyer,


 


Dated as of June 27, 2003


 


 




	
   

  	
   

  	
   

  






 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.2

  	
  Other
  Interpretive Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SALES AND CONTRIBUTIONS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1

  	
  Sales and
  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.2

  	
  Acceptance by
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.3

  	
  Grant of
  Security Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.4

  	
  Purchase
  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.5

  	
  Adjustments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.6

  	
  Addition of
  Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.7

  	
  Removal of
  Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.8

  	
  Discount
  Option

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.9

  	
  Additional
  Sellers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  2.10

  	
  Additional
  Originators

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1

  	
  Conditions to
  Initial Transfer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.2

  	
  Conditions to
  all Transfers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  OTHER MATTERS RELATING TO SELLER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1

  	
  Merger or
  Consolidation of, or Assumption of the Obligations of, Seller, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  BANKRUPTCY EVENTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1

  	
  Rights upon
  the Occurrence of a Bankruptcy Event

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1

  	
  Representations
  and Warranties of Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.2

  	
  Affirmative
  Covenants of Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.3

  	
  Negative
  Covenants of Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.4

  	
  No-Petition
  Covenant of Buyer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.1

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.2

  	
  No Waiver;
  Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.3

  	
  Successors
  and Assigns

  	
   

  
					



 


i

















 


	
   

  	
  Section 7.4

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.5

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.6

  	
  Complete
  Agreement; Modification of Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.7

  	
  GOVERNING
  LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.8

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.9

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.10

  	
  Section
  Titles

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.11

  	
  No Setoff

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.12

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.13

  	
  Further
  Assurances

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.14

  	
  Accounting
  Changes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.15

  	
  No Indirect
  or Consequential Damages

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section
  7.16

  	
  Limitation
  of Liability of the Trustee

  	
   

  



 


SCHEDULES


 


	
   

  	
  SCHEDULE 1

  	
  List of
  Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCHEDULE
  6.1(a)

  	
  Seller’s
  UCC Information

  	
   

  



 


EXHIBITS


 


	
   

  	
  EXHIBIT A

  	
  Form of
  Assignment of Transferred Receivables in Additional Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EXHIBIT B

  	
  Form of
  Reassignment of Transferred Receivables in Removed Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EXHIBIT
  C

  	
  Form
  of Opinion of Counsel with Respect to Amendments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EXHIBIT
  D

  	
  Form
  of Opinion of Counsel with Respect to Additional Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EXHIBIT E

  	
  Annual Opinion

  	
   

  



 


ii

















 


RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT, dated as of June 27,
2003 (this “Agreement”), between RFS
HOLDING, L.L.C., a Delaware limited liability company, as Seller (“Seller”)
and RFS FUNDING TRUST, a Delaware statutory trust, as Buyer (“Buyer”).


 


In consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


ARTICLE I



DEFINITIONS


 


Section 1.1             Definitions


 


“Account” means each Initial
Account and each Additional Account, but excludes any Account all of the
Receivables in which are either reassigned or assigned to Seller or its
designee in accordance with this Agreement, and any Accounts which in
accordance with Seller’s customary practices have been removed from Seller’s
computer records due to lack of activity. 
The term “Account” includes each account into which an Account is
transferred (a “Transferred Account”) so long as (a) such transfer is
made in accordance with the Credit and Collections Policies and (b) such
Transferred Account can be traced or identified, by reference to or by way of
any Account Schedule delivered to Buyer pursuant to this Agreement, as an
account into which an Account has been transferred.  Notwithstanding the foregoing, no account in a Dual Card Program
shall be deemed to be a “Transferred Account” with respect to any Account in a
Private Label Program.  Any Account in
which the Principal Receivables have become Charged-Off Receivables shall cease
to be an Account for all purposes other than the calculation of Recoveries, and
no existing balance or future charges on such account shall be deemed to be
Transferred Receivables notwithstanding any subsequent reaffirmation of such
account by the Obligor and any resulting action by Originator.  The term Account includes an Additional
Account only from and after its Addition Date and includes any Removed Account
only prior to its Removal Date.  To
avoid doubt, and without limiting the foregoing, each Flagged Account is an
Account.


 


“Accounting Changes” means,
with respect to any Person: (a) changes in accounting principles required by
the promulgation of any rule, regulation, pronouncement or opinion of the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants (or any successor thereto or any agency with similar
functions); (b) changes in accounting principles concurred by such Person’s
certified public accountants; (c) purchase accounting adjustments under A.P.B.
16 or 17 and EITF 88-16, and the application of the accounting principles set
forth in FASB 109, including the establishment of reserves pursuant thereto and
any subsequent reversal (in whole or in part) of such reserves; and (d) the
reversal of any reserves established as a result of purchase accounting
adjustments.


 

















 


“Account Schedule” means a computer
file or microfiche list containing a true and complete list of Accounts,
identified by account number (or by an alpha-numeric identifier that uniquely
and objectively identifies the applicable account number pursuant to a protocol
that has been provided to the Buyer) and setting forth the receivables balance
for each as of (i) the applicable Addition Cut-Off Date, in the case of an
Account Schedule relating to Additional Accounts, (ii) the Removal Notice Date,
in the case of an Account Schedule relating to Removed Accounts or (iii) the
date specified therein, in the case of any Account Schedule relating to
Transferred Accounts or any other Account Schedule.  Notwithstanding the foregoing, the initial Account Schedule does
not set forth receivables balances, and any failure to set forth receivables
balances in such a file or list shall not impair the file’s or list’s effectiveness
as an Account Schedule.


 


“Addition Cut-Off Date” means the date as of which any credit
card accounts are designated to be included as Additional Accounts, as
specified in the related Assignment.


 


“Addition Date” means, as to
any Additional Accounts, the date as of which receivables outstanding in such
Additional Account are first sold to Buyer, as specified in the related
Assignment.


 


“Additional Accounts” is
defined in Section 2.6(a).


 


“Additional Retailer” means any
retailer for which Originator maintains a Private Label Program, a Dual Card
Program or both, which retailer is designated as an “Additional Retailer” in
accordance with Section 2.6(e).


 


“Administration Agreement” means that certain Amended and
Restated Administration Agreement dated as of December 30, 2002 and amended and
restated as of June 27, 2003, among the Administrator, the Borrower and the
Trustee.


 


“Administrator” means GE Capital, in its capacity as
Administrator under the Administration Agreement, or any other Person
designated as a successor Administrator.


 


“Affiliate” means, with respect
to any Person, (a) each Person that, directly or indirectly, owns or controls,
whether beneficially, or as a trustee, guardian or other fiduciary, five
percent (5%) or more of the securities having ordinary voting power in the
election of directors of such Person, (b) each Person that controls, is
controlled by or is under common control with such Person, or (c) each of such
Person’s officers, directors, joint venturers and partners.  For the purposes of this definition,
“control” of a Person means the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.


 


“Aggregate Principal Receivables”
means, as of any date of determination, the aggregate Outstanding Balance of
Principal Receivables as of such date (excluding Principal Receivables that are
Specified Retailer Receivables), plus the principal amount of any Participation
Interests.


 


2

















 


“Aggregate Reassignment Amount”
means, for any reassignment of the Transferred Receivables pursuant to Section
6.1(f), the aggregate outstanding amount of Transferred Receivables (including
Principal Receivables and Finance Charge Receivables) as of the end of the last
preceding Monthly Period; provided that in no event shall the Aggregate
Reassignment Amount be less than the sum of the amounts specified pursuant to
the Indenture and the “Payoff Amount” specified (and as defined in) the Funding
Agreement.


 


“Agreement” is defined in the
preamble.


 


“Agreement Termination Date” is
defined in Section 7.4.


 


“Assignment” is defined in Section
2.6(d).


 


“Authorized Officer” means,
with respect to any corporation or statutory trust, the Chairman or
Vice-Chairman of the Board, the President, any Vice President, the Secretary,
the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other
officer of such corporation or trustee of such trust specifically authorized in
resolutions of the Board of Directors of such corporation or trustee of such
trust to sign agreements, instruments or other documents on behalf of such
corporation or statutory trust in connection with the transactions contemplated
by the Related Documents.


 


“Banana Republic Program Agreement” means that certain Amended
and Restated Consumer Credit Card Program Agreement, dated as of August 29,
2000, by and among Gap, Inc. and Monogram.


 


“Banana Republic Retailers” means Gap, Inc. d/b/a Banana
Republic and its permitted assigns under the Banana Republic Program Agreement.


 


“Bank Receivables Sale Agreement” means the Receivables Sale
Agreement dated as of June 27, 2003, between Monogram and Seller.


 


“Bankruptcy Event” means, as to
any Person, any of the following events: (a) a case or proceeding shall
have been commenced against such Person seeking a decree or order in respect of
such Person (i) under any Debtor Relief Law, (ii) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for any such Person or for any substantial part of such Person’s assets, or
(iii) ordering the winding-up or liquidation of the affairs of any such
Person; or (b) such Person shall (i) file a petition seeking relief under
any Debtor Relief Law, (ii) consent or fail to object in a timely and
appropriate manner to the institution of proceedings thereunder or to the
filing of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Person or for any substantial part of such Person’s assets,
(iii) make an assignment for the benefit of creditors, or (iv) take any
corporate or statutory trust action in furtherance of any of the foregoing.


 


3

















 


“Business Day” means any day
that is not a Saturday, a Sunday or a day on which banks are required or
permitted to be closed in the State of New York, the State of Connecticut or
the state of Servicer’s principal place of business (currently Georgia).


 


“Buyer” is defined in the
preamble.


 


“Charged-Off Receivable” means
a Principal  Receivable (or any portion
thereof) arising in an Account which either (a) is 180 days past due or (b) has
otherwise been written off as uncollectible in accordance with the Credit and
Collection Policies.  To avoid doubt, a
Principal Receivable shall become a Charged-Off Receivable upon the earlier of
the events described in clause (a) or clause (b) to occur with respect to the
related Account.


 


“Closing Date” means June 27,
2003.


 


“Collection Account” means the deposit account from time to time
designated as the “Collection Account” pursuant to the Indenture.


 


“Collections” means, for any
Receivable for any period, (a) the sum of all amounts, whether in the form of
cash, checks, drafts, or other instruments, received by Originator or Servicer
in payment of, or applied to, any amount owed by an Obligor on account of such
Receivable during such period, including all amounts received on account of
such Receivable, all other fees and charges, (b) cash proceeds of Related
Security with respect to such Receivable and (c) any in-store payments received
by a Retailer, Servicer or Originator with respect to such Receivable.


 


“Contract” means the agreement
and Federal Truth in Lending Statement for revolving credit card accounts
between any Obligor and Originator, as such agreements may be amended,
modified, or otherwise changed from time to time.


 


“Credit and Collection Policies”
means, with respect to each credit card program from which Accounts are drawn,
Originator’s policies and procedures relating to the operation of such credit
card program, including the policies and procedures for determining the
creditworthiness of Obligors and the extension of credit to Obligors, and
relating to the maintenance of credit card accounts and collection of credit
card receivables, as such policies and procedures may be amended from time to
time.


 


“Credit Card Program Agreement”
means one or more agreements between Originator and a Retailer pursuant to
which Originator provides a Private Label Program, a Dual Card Program or both
to the Retailer and its customers.


 


“Daily Sale Commencement Date”
means the date that the first series of Notes is issued or such earlier date as
may be agreed upon between Buyer and Seller.


 


“Date of Processing” means, as to
any transaction, the Business Day on which the transaction is first recorded on
Servicer’s computer file of consumer revolving accounts (without regard to the
effective date of such recordation).


 


4

















 


“Debtor Relief Laws” means Title 11
of the United States Code, the Federal Deposit Insurance Act and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, readjustment
of debt, marshalling of assets or similar debtor relief laws of the United
States, any state or any foreign country from time to time in effect, affecting
the rights of creditors generally.


 


“Discount Option Receivables” is defined in Section 2.8(b).


 


“Discount Option Receivables Collections” is defined in Section
2.8(c).


 


“Discount Percentage” is defined in Section 2.8(a).


 


“Dual Card Program” means any
arrangement in which Originator agrees to extend general purpose credit card
accounts to customers of a Retailer, which accounts combine a private label
credit line for use at the Retailer’s retail establishments or in its catalogue
sales business and a general purpose credit line for use elsewhere.


 


“Early Amortization Event” means an “Early Amortization Event”
for any series of Notes, as defined in the Indenture and the applicable
supplement to the Indenture relating to that series of Notes.


 


“Eligible Account” means a credit
card account that satisfies the definition of “Eligible Account” in the Bank
Receivables Sale Agreement as of the applicable date specified therein.


 


“Eligible Receivable” means a
Receivable that satisfies the definition of “Eligible Receivable” in the Bank
Receivables Sale Agreement; it being understood that references to “Buyer” and
“Seller” in such definition shall be deemed to refer to Buyer and Seller as
defined in this Agreement.


 


“Excess Funding Account” means the deposit account from time to
time designated as the “Excess Funding Account” pursuant to the Indenture.


 


“Finance Charge Receivables”
means Receivables created in respect of periodic finance charges, late fees,
returned check fees and all other similar fees and charges billed or accrued
and unpaid on an Account.


 


“Flagged Account” is defined in Section 2.1(b).


 


“Free Equity Amount” means, at any time, the excess, if any, of
the Note Trust Principal Balance over the sum of the portions of the Note Trust
Principal Balance allocated as collateral (referred to in the Indenture as the
“Collateral Amount”) for each then outstanding series of Notes.


 


“Funding Agreement” means that
certain Receivables Funding Agreement dated as of June 27, 2003, between the
Buyer and the Lender, which amends and restates that certain Third Amended and
Restated Receivables Funding and Servicing Agreement


 


5

















 


dated as of September 25, 1997 and amended and restated
as of July 22, 1998, as of March 22, 2001, and as of December 30, 2002, among
the Buyer, the Lender, the Servicer and GE Capital.


 


“GAAP” means generally accepted accounting principles in the
United States of America in effect from time to time.


 


“Gap Program Agreement” means
that certain Consumer Credit Card Program Agreement, dated as of August 28,
2000, by and among Gap, Inc. and Monogram.


 


“Gap Retailers” means Gap, Inc.
and its permitted assigns under the Gap Program Agreement.


 


“GE Capital” means General
Electric Capital Corporation, a Delaware corporation.


 


“GECAF Retailer” means each
retailer who is from time to time a party to a dealer agreement with Monogram
relating to Monogram’s GECAF private label credit card program.


 


“Governmental Authority” means
any nation or government, any state or other political subdivision thereof, and
any agency, department or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.


 


“Gross Principal Balance” is defined in Section 2.8(b).


 


“Inactive Account” is defined in Section 2.7(d).


 


“Indenture” means the master indenture to be entered into
between Issuer and an indenture trustee.


 


“Indenture Security Agreement” means the Security Agreement to
be entered into between Buyer and the Indenture Trustee.


 


“Indenture Trustee” means, at any time, the Person acting as
indenture trustee under the Indenture.


 


“Ineligible Receivable” is defined in Section 6.1(d).


 


“Initial Account” means each open end credit card account
identified in the Account Schedule delivered in connection with the execution
and delivery of this Agreement.


 


“Insurance Proceeds” means any
amounts payable to Originator pursuant to any credit insurance policies
covering any Obligor with respect to Receivables under such Obligor’s Account.


 


6

















 


“Involuntary Removal” is defined in Section 2.7(b).


 


“Issuer” means GE Capital
Credit Card Master Note Trust, a Delaware statutory trust.


 


“JCPenney Program Agreement”
means that certain Consumer Credit Card Program Agreement, dated as of December
6, 1999, by and between J.C. Penney Company, Inc. and Monogram.


 


“JCPenney Retailers” means J.C.
Penney Company, Inc. and other Authorized Entities as such term is defined in
the J.C. Penney Program Agreement.


 


“Lender” means the Person who
makes advances under the Funding Agreement.


 


“Lien” means any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien,
charge, claim, security interest, easement or encumbrance, or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any lease or title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of, or agreement to give, any financing statement
perfecting a security interest under the UCC or comparable law of any
jurisdiction).


 


“Litigation” means, with
respect to any Person, any action, claim, lawsuit, demand, investigation or
proceeding pending or threatened against such Person before any court, board,
commission, agency or instrumentality of any federal, state, local or foreign
government or of any agency or subdivision thereof or before any arbitrator or
panel of arbitrators.


 


“Lowe’s Retailers” means each
of Lowe’s Companies, Inc., Lowe’s Home Centers, Inc., The Contractor Yard,
Inc., Lowe’s HIW, Inc. and certain of their affiliates.


 


“Material Adverse Effect” means
a material adverse effect on (a) the ability of Seller to perform any of its
obligations under the Related Documents in accordance with the terms thereof,
(b) the validity or enforceability of any Related Document or the rights and
remedies of Seller or Buyer under any Related Document or (c) the Transferred
Receivables, the Contracts therefor or the ownership interests or Liens of
Seller or Buyer thereon or the priority of such interests or Liens.


 


“Maximum Addition Amount” means, with respect to any Addition
Date:


 


(a) an aggregate
principal balance as of such Addition Date of Additional Accounts not in excess
of lesser of:


 


(i) the
result of (A) 15% of the Aggregate Principal Receivables determined as of the
first day of the third preceding Monthly Period minus (B) the Aggregate
Principal Receivables in all of the Accounts that have been designated as
Additional Accounts since the first day of the third


 


7

















 


preceding Monthly Period (measured for each such Additional Account as of
the applicable Addition Cut-Off Date); and


 


(ii) the
result of (A) 20% of the Aggregate Principal Receivables determined as of the
first day of the calendar year in which such Addition Date occurs minus (B) the
Aggregate Principal Receivables in all of the Accounts that have been
designated as Additional Accounts since the first day of such calendar year
(measured, for each such Additional Account, as of the applicable Addition
Cut-Off Date); and


 


(b) a total
number of Additional Accounts not in excess of the lesser of:


 


(i) the
result of (A) 15% of the total number of Accounts determined as of the first
day of the third preceding Monthly Period minus (B) the total number of
Accounts that have been designated as Additional Accounts since the first day
of the third preceding Monthly Period; and


 


(ii) the
result of (A) 20% of the total number of Accounts determined as of the
first day of the calendar year in which such Addition Date occurs minus (B) the
total number of Accounts that have been designated as Additional Accounts since
the first day of such calendar year.


 


“Minimum Free Equity Amount” means the minimum Free Equity
Amount that the Issuer is required to maintain pursuant to the Indenture.


 


“Monogram” means Monogram Credit Card Bank of Georgia, a bank
organized under the laws of the State of Georgia.


 


“Montgomery Ward” means
Montgomery Ward & Co. Incorporated.


 


“Monthly Period” means each
period beginning on the 22nd day of one calendar month and ending on
the 21st day of the next calendar month; except that the Monthly
Period that ends in July 2003 shall begin on June 19, 2003 and shall end on
July 21, 2003.


 


“Note” means any note issued by the Issuer, and authenticated by
the Indenture Trustee pursuant to the Indenture.


 


“Note Trust Principal Balance” means, as of any time of
determination falling within or relating to a Monthly Period, the result of (a)
the Aggregate Principal Receivables at that time, plus (b) the amount on
deposit in the Excess Funding Account at that time (exclusive of any investment
earnings on such amount), minus (c) the Borrowing Base (as defined in the Trust
Agreement) for that Monthly Period.


 


“Obligor” means, with respect
to any Receivable, any Person obligated to make payments in respect thereof.


 


8

















 


“Officer’s Certificate” means,
with respect to any Person, a certificate signed by an Authorized Officer of
such Person.


 


“Old Navy Program Agreement” means that certain Consumer Credit
Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and
Monogram.


 


“Old Navy Retailers” means Gap, Inc. d/b/a Old Navy and its
permitted assigns under the Old Navy Program Agreement.


 


“Opinion of Counsel” means a
written opinion of counsel, who may be counsel for, or an employee of, the
Person providing the opinion.


 


“Originator” means Monogram or any other originator so
designated pursuant to Section 2.10.


 


“Outstanding Balance” means,
with respect to any Principal Receivable: (a) as of the Transfer Date for that
Principal Receivable, the outstanding amount of such Principal Receivable as
reflected on Servicer’s books and records (after giving effect to any
recharacterization of any portion of such Principal Receivable as a Finance
Charge Receivable pursuant to Section 2.8); and (b) thereafter, the
amount referred to in clause (a) minus
Collections with respect to that Principal Receivable that are allocable to a
reduction of the Outstanding Balance thereof minus any subsequent discounts to
or any other modifications that reduce such Outstanding Balance; provided, that the Outstanding Balance of a
Charged-Off Receivable shall equal zero.


 


“Participation Interest” is defined in the Bank Receivables Sale
Agreement.


 


“Payment Date” means, except as otherwise specified in any
supplement to the Indenture, the 15th day of each calendar month, or
if the 15th day is not on a Business Day, the next Business Day.


 


“Permitted Encumbrances” means
the following encumbrances: (a) Liens for taxes or assessments or other
governmental charges not yet due and payable; (b) inchoate and unperfected
workers’, mechanics’, suppliers’ or similar Liens arising in the ordinary
course of business; and (c) presently existing or hereinafter created
Liens in favor of, or created by, Buyer.


 


“Person” means any individual,
sole proprietorship, partnership, joint venture, unincorporated organization,
trust, association, corporation (including a business trust), limited liability
company, institution, public benefit corporation, joint stock company,
Governmental Authority or any other entity of whatever nature.


 


“Principal Receivable” means
each Receivable, other than a Finance Charge Receivable.


 


“Prior Transfer Agreement”
means that certain Third Amended and Restated Receivables Transfer Agreement
dated as of September 25, 1997, amended and restated


 


9

















 


as of July 22, 1998, as of March 22, 2001 and as of
December 30, 2002 between Originator and Buyer.


 


“Private Label Program” means a
business arrangement in which Originator agrees to extend open end credit card
accounts to customers of such Retailer and such Retailer agrees to allow
purchases to be made at its retail establishments, or in its catalogue sales
business, under such accounts.


 


“Purchase Date” means the Closing
Date and (a) prior to the Daily Sale Commencement Date, the last day of each
Monthly Period and (b) thereafter, each Business Day.


 


“Purchase Price” is defined in Section 2.4(a).


 


“Rating Agency” means, as to any
class of Notes, the rating agency or agencies, if any, specified in the related
supplement to the Indenture.


 


“Rating Agency Condition” means,
with respect to any action, that each Rating Agency, if any, shall have
notified Issuer that such action will not result in a reduction or withdrawal of
the rating, if any, of any outstanding class with respect to which it is a
Rating Agency.


 


“Reassignment” is defined in Section 2.7(a).


 


“Receivable” means any amount owing by an Obligor under an
Account from time to time.


 


“Records” means all Contracts
and other documents, books, records and other information (including computer
programs, tapes, disks, data processing software and related property and
rights) prepared and maintained by Originator, Servicer, or any Sub-Servicer
with respect to the Transferred Receivables and the Obligors thereunder.


 


“Recoveries” means (a) so long as the servicing arrangement
described in Section 2.1(c) of the Bank Receivables Sale Agreement
remains in effect, amounts allocated to the Transferred Receivables pursuant to
that Section and (b) if at any time that servicing arrangement no longer
remains in effect, with respect to any Transferred Receivable, (i) Collections
of such Transferred Receivable received after such Transferred Receivable was
charged off as uncollectible but before any sale or other disposition of such
Transferred Receivable after charge off; and (ii) any proceeds from such a sale
or other disposition by Seller of such a charged-off Transferred Receivable, in
each of clauses (i) and (ii) net of expenses of recovery.


 


“Related Documents” means this
Agreement, the Bank Receivables Sale Agreement, the Trust Agreement, the
Transfer Agreement, the Indenture, the Servicing Agreement, the Indenture
Security Agreement, the Administration Agreement and all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any


 


10

















 


Person, or any employee of any Person, and delivered
in connection with any of the foregoing or the transactions contemplated
thereby.


 


“Related Security” means with respect to any Receivable: (a) all
of Originator’s interest, if any, in the goods, merchandise (including returned
merchandise) or equipment, if any, the sale of which gave rise to such
Receivable; (b) all guarantees, insurance or other agreements or arrangements
of any kind from time to time supporting or securing payment of such Receivable
whether pursuant to the Contract related to such Receivable or otherwise; and
(c) all Records relating to such Receivable.


 


“Removed Accounts” is defined in Section 2.7(a).


 


“Removal Date” is defined in Section 2.7(a).


 


“Removal Notice Date” is defined in Section 2.7(a).


 


“Required Principal Balance” means the minimum Note Trust
Principal Balance that the Issuer is required to maintain pursuant to the
Indenture.


 


“Requirements of Law” means, as to
any Person, the certificate of incorporation or articles of association and
by-laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or determination of an arbitrator 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.


 


“Retailer” means the Banana
Republic Retailers; the Gap Retailers; the GECAF Retailers; Home Depot U.S.A.;
the JCPenney Retailers, Inc.; the Lowe’s Retailers; Montgomery Ward; the Old
Navy Retailers; the Sam’s Club Retailers, the Wal-Mart Retailers and from time
to time, any “Additional Retailer” designated pursuant to (and as defined in)
this Agreement.  It is understood and
agreed that (a) additional retailers who from time to time become GECAF
Retailers shall automatically be treated as Retailers with respect to
Monogram’s GECAF program without the necessity of complying with the terms of Section
2.6(e) and (b) any Person designated as a Retailer shall cease to be
included as a Retailer if the Accounts related to that Person are designated as
Removed Accounts pursuant to Section 2.7(b), effective at the time that
the repurchase of the related Transferred Receivables is completed.


 


“RFS Funding Termination Date”
means the date on which Buyer is terminated and all of the Transferred Receivables
held by Buyer are transferred to the Issuer.


 


“Sam’s Club Program Agreement”
means that certain Third Amended and Restated Consumer Credit Card Program
Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc.,
Sam’s West, Inc., Sam’s East, Inc. and Monogram.


 


“Sam’s Club Retailers” means
Sam’s West, Inc., a Delaware corporation, Sam’s East, Inc., a Delaware
corporation, and their respective successors and permitted assigns under the
Sam’s Club Program Agreement.


 


11

















 


“Seller” means RFS Holding, L.L.C. or any additional Person
designated as a “Seller” in accordance with Section 2.9.


 


“Servicer” means
Monogram, in its capacity as Servicer under the Servicing Agreement, or any
other Person designated as a successor servicer pursuant to the Servicing
Agreement.


 


“Servicing Agreement” means the Servicing Agreement dated as of
June 27, 2003, among Servicer, Buyer and, upon its accession as provided
therein, Issuer.


 


“Specified Retailer Receivables” means the Transferred
Receivables arising in the Originator’s programs for Home Depot U.S.A., Inc.
and Montgomery Ward.  Transferred
Receivables arising in the Originator’s program for Montgomery Ward that have
been transferred to the Originator’s program for Wal-Mart Retailers shall not
be considered Specified Retailer Receivables.


 


“Sub-Servicer” means any Person
with whom Servicer enters into a Sub-Servicing Agreement.


 


“Sub-Servicing Agreement” means
any written contract entered into between Servicer and any Sub-Servicer
relating to the servicing, administration or collection of the Transferred
Receivables.


 


“Subsidiary” means, with
respect to any Person, any corporation or other entity (a) of which securities
or other ownership interests having ordinary voting power to elect a majority
of the board of directors or other Persons performing similar functions are at
the time directly or indirectly owned by such Person or (b) that is
directly or indirectly controlled by such Person within the meaning of control
under Section 15 of the Securities Act.


 


“Transfer Agreement” means the Transfer Agreement to be entered
into between Seller and the Issuer.


 


“Transfer Date” means a date on which Buyer acquires Transferred
Receivables from Seller pursuant to Section 2.1 or any Assignment.


 


“Transferred Account” is defined within the definition of
Account.


 


“Transferred Assets” is defined in Section 2.1.


 


“Transferred Receivable” means
any Receivable purchased by Buyer from Seller pursuant to this Agreement or any
Assignment, including Principal Receivables and Finance Charge Receivables that
exist at the time of purchase of any Principal Receivables in the same Account
or that arise in an Account after the date of purchase of Principal Receivables
in the Account.  However, Receivables
that are repurchased by Seller pursuant to this Agreement or purchased by
Servicer pursuant to the Servicing Agreement shall cease to be considered
“Transferred Receivables” from the date of such purchase.


 


12

















 


“Trust Agreement” means the
Amended and Restated Trust Agreement dated as of December 19, 2002 among
Seller, General Electric Capital Services, Inc., and Deutsche Bank Trust
Company Delaware, as trustee, as amended and restated on June 27, 2003 among
Seller, RFS Holding, Inc. (as assignee of General Electric Capital Services,
Inc.) and Deutsche Bank Trust Company Delaware, as trustee.


 


“Trustee” means Deutsche Bank Trust Company Delaware, not in its
individual capacity but solely in its capacity as trustee under the Trust
Agreement.


 


“UCC” means, with respect to
any jurisdiction, the Uniform Commercial Code as the same may, from time to
time, be enacted and in effect in such jurisdiction.


 


“United States” means the United States of America, together
with its territories and possessions.


 


“Wal-Mart Program Agreement”
means that certain Consumer Credit Card Program Agreement dated as of August
26, 1999, by and between Wal-Mart Stores, Inc. and Monogram.


 


“Wal-Mart Retailers” means
‘Retailer’ as such term is defined in the Wal-Mart Program Agreement.


 


Section 1.2             Other Interpretive Matters.  All terms defined directly or by
incorporation in this Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant thereto unless otherwise
defined therein.  For purposes of this
Agreement and all related certificates and other documents, unless the context
otherwise requires: (a) accounting terms not otherwise defined in this
Agreement, and accounting terms partly defined in this Agreement to the extent
not defined, shall have the respective meanings given to them under GAAP; and
unless otherwise provided, references to any month, quarter or year refer to a
fiscal month, quarter or year as determined in accordance with the GE Capital
fiscal calendar; (b) terms defined in Article 9 of the UCC as in effect in the
applicable jurisdiction and not otherwise defined in this Agreement are used as
defined in that Article; (c) references to any amount as on deposit or
outstanding on any particular date means such amount at the close of business
on such day; (d) the words “hereof,” “herein” and “hereunder” and words of
similar import refer to this Agreement (or the certificate or other document in
which they are used) as a whole and not to any particular provision of this
Agreement (or such certificate or document); (e) references to any
Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits
in or to this Agreement (or the certificate or other document in which the
reference is made), and references to any paragraph, subsection, clause or
other subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (f) the
term “including” means “including without limitation”; (g) references to any
law or regulation refer to that law or regulation as amended from time to time
and include any successor law or regulation; (h) references to any
agreement refer to that agreement as from time to time amended, restated or
supplemented or as the terms of such agreement


 


13

















 


are waived or modified in accordance with its terms; and (i) references
to any Person include that Person’s successors and permitted assigns.


 


ARTICLE II



SALES AND CONTRIBUTIONS


 


Section 2.1             Sales and Contributions.  (a) By execution of this Agreement, Seller
does hereby transfer, assign, set over and otherwise convey to Buyer, without
recourse except as provided herein, all its right, title and interest in, to
and under, (i) the Receivables existing at the opening of business on the
Closing Date, and thereafter created from time to time until the Agreement
Termination Date (excluding, however, any Receivables existing on the Closing
Date or thereafter arising in any Account relating to Montgomery Ward or
Seller’s currently existing program for Home Depot U.S.A., Inc.), together with
the Related Security and Collections with respect thereto, in each case together
with all monies due or to become due and all amounts received or receivable
with respect thereto and Insurance Proceeds relating thereto, (ii) without
limiting the generality of the foregoing or the following, all of Seller’s
rights pursuant to the Bank Receivables Sale Agreement to receive payments from
any Retailer on account of in-store payments and any other amounts received by
such Retailer in payment of Receivables, (iii) all of Seller’s other rights
under the Bank Receivables Sale Agreement and (iv) all proceeds of all of the
foregoing (collectively, the “Transferred Assets”).  The foregoing does not constitute and is not
intended to result in the creation or assumption by Buyer of any obligation of
Originator, Seller or any other Person in connection with the Accounts or the
Transferred Receivables or under any agreement or instrument relating thereto,
including any obligation to Obligors, merchant banks, Retailers, clearance
systems or insurers.  The foregoing
conveyance shall be effective (x) on the Closing Date, as to all Transferred
Assets then existing, (y) thereafter until the Daily Sale Commencement Date, on
each Purchase Date, as to all Transferred Assets arising since the prior
Purchase Date and (z) from and after the Daily Sale Commencement Date,
instantaneously upon the creation of each Transferred Asset.


 


(b)           Seller
agrees, at its own expense, (i) on or prior to (x) the Closing Date, in the
case of the Initial Accounts, (y) the applicable Addition Date, in the case of
Additional Accounts, and (z) the applicable Removal Date, in the case of
Removed Accounts, to indicate, or cause to be indicated, in the appropriate
computer files that Receivables created (or reassigned, in the case of Removed
Accounts) in connection with the Accounts have been conveyed to Buyer pursuant
to this Agreement (or conveyed to Seller or its designee in accordance with Section 2.7, in the case of Removed Accounts) by
including, or causing to be included, in such computer files a code so
identifying each such Account (or, in the case of Removed Accounts, deleting,
or causing to be deleted, such code thereafter) and (ii) on or prior to the
date referred to in clauses (i)(x), (y) or (z), as
applicable, to deliver to Buyer an Account Schedule.  The initial such Account Schedule, as supplemented from time to
time to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule
1 to this Agreement and is hereby incorporated into and made a part of this
Agreement.  Once the code referenced in clause
(i) of this paragraph has been included with respect to any Account, Seller
further agrees


 


14

















 


not to permit such code to be altered during the remaining term of this
Agreement unless and until (x) such Account becomes a Removed Account, or (y)
Seller shall have delivered to Buyer at least 30 days’ prior written notice of
its intention to do so and has taken such action as is necessary or advisable
to cause the interest of Buyer in the Transferred Receivables to continue to be
perfected with the priority required by this Agreement.  At any time that the code referenced in clause
(i) is included with respect to any account, such account shall be a “Flagged
Account.”


 


Section 2.2             Acceptance
by Trustee.


 


(a)           Buyer
hereby acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, conveyed to Buyer pursuant to Section 2.1. 
Trustee shall maintain a copy of Schedule 1,
as delivered to it from time to time.


 


(b)           Trustee
hereby agrees not to disclose to any Person any of the account numbers or other
information contained in the Account Schedule marked as Schedule
1 and delivered to Trustee, from time to time, except (i) to
Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to
Trustee, (ii) in connection with the performance of Trustee’s duties hereunder,
(iii) to Indenture Trustee in connection with Indenture Trustee’s duties or
(iv) to bona fide creditors or potential creditors of Servicer or Seller for
the limited purpose of enabling any such creditor to identify Transferred
Receivables or Accounts subject to this Agreement.  Trustee agrees to take such measures as shall be reasonably
requested by Seller to protect and maintain the security and confidentiality of
such information and, in connection therewith, shall allow Seller or its duly
authorized representatives to inspect Trustee’s security and confidentiality
arrangements from time to time during normal business hours upon prior written
notice.  Trustee shall promptly notify
Seller of any request received by Trustee to disclose information of the type
described in this Section 2.2(b), which notice shall in any event be
provided no later than five (5) Business Days prior to disclosure of any such information
unless Trustee is compelled pursuant to a Requirement of Law to disclose such
information prior to the date that is five (5) Business Days after the giving
of such notice.


 


Section 2.3             Grant of Security Interest.  The parties hereto intend that each transfer
of the Transferred Assets shall constitute a sale by Seller to Buyer and not a
loan by Buyer to Seller secured by the Transferred Assets.  Notwithstanding anything to the contrary set
forth in this Section 2.3, if a
court of competent jurisdiction determines that any transaction provided for
herein constitutes a loan and not a sale, then the parties hereto intend that
this Agreement shall constitute a security agreement under applicable law and
that Seller shall be deemed to have granted, and Seller hereby grants, to Buyer
a first priority lien and security interest in and to all of Seller’s right,
title and interest in, to and under the Transferred Assets, subject only to
Permitted Encumbrances.


 


Section 2.4             Purchase Price. (a)  The purchase price for the Transferred
Receivables and the other Transferred Assets related thereto shall equal the
Outstanding Balance of the Principal Receivables included therein, adjusted
consistent with any


 


15

















 


applicable Discount Percentage (such amount for any Transferred Assets,
the “Purchase Price”).


 


(b)           The
Purchase Price for any Transferred Assets sold by Seller under this Agreement
shall be payable in full in cash on each Purchase Date or less frequently if so
agreed between Buyer and Seller; provided, however, that Buyer
may, with respect to any sale or contribution, offset against such Purchase
Price any amounts owed by Seller to Buyer hereunder and which remain
unpaid.  On each such Purchase Date or
other date set by the parties for payment, Buyer shall, upon satisfaction of
the applicable conditions set forth in Article III,
make available to Seller the Purchase Price for the applicable Transferred
Assets in same day funds.  If Buyer does
not have sufficient cash on any Purchase Date or other date set by the parties
for payment to pay the full Purchase Price, the remaining balance shall be
deemed to be contributed to Buyer in exchange for a corresponding increase in
the Free Equity Amount.  During the
period beginning on the Daily Sale Commencement Date and ending when mutually
agreed between Buyer and Seller, the Purchase Price payable on each Purchase
Date shall be based on good faith estimates of the amount of new Receivables
since the prior Purchase Date, and the Buyer and Seller shall make compensating
payments on each Payment Date as necessary to correct for any errors in
estimation.


 


Section 2.5             Adjustments.  If on any day the outstanding amount of any
Principal Receivable is reduced because of a rebate, refund, unauthorized
charge or billing error to an accountholder, or because such Principal
Receivable was created in respect of merchandise which was refused or returned
by an accountholder, or if the outstanding amount of any Principal Receivable
is otherwise reduced other than on account of Collections thereof or such
amount being charged-off as uncollectible, then, Seller shall compensate Buyer
for such reduction as provided below. 
The compensation payable by Seller for any such reduction shall equal
the amount of the reduction in the Outstanding Balance of the Principal
Receivable.  Seller shall pay such
compensation to Buyer not later than the second Business Day after adjustment
or less frequently if so agreed between Buyer and Seller.


 


Section 2.6             Addition
of Accounts.


 


(a)           If,
at the end of any Monthly Period, the Free Equity Amount is less than the
Minimum Free Equity Amount, Seller shall require Originator to designate
additional Eligible Accounts to be included as “Accounts” under (and as defined
in) the Bank Receivables Sale Agreement, and Seller shall in turn designate
such accounts (“Additional Accounts”)
as Accounts for purposes of this Agreement in a sufficient amount such that the
Free Equity Amount at the end of such Monthly Period, computed on a pro forma
basis as if the Additional Accounts had been designated prior to the end of
such Monthly Period, is at least equal to the Minimum Free Equity Amount (if
any).  In addition, if, at the end of
any Monthly Period, the Note Trust Principal Balance is less than the Required
Principal Balance, Seller shall require Originator to designate additional
Eligible Accounts to be included as “Accounts” under the Bank Receivables Sale
Agreement, and Seller shall in turn designate such accounts as Additional
Accounts for purposes of this Agreement in a sufficient amount such that the
Note Trust Principal 


 


16

















 


Balance will be equal to or greater than the Required Principal
Balance.  Receivables from such Additional
Accounts shall be transferred to Buyer on or before the tenth Business Day
following such Monthly Period.  To the
extent Seller designates Additional Accounts with Principal Receivables
substantially in excess of the amount of Principal Receivables required under
this subsection 2.6(a), such
excess shall be deemed to be optional Additional Accounts under subsection 2.6(b) below and will be
permitted to be so designated solely to the extent permitted by subsection 2.6(b).


 


(b)           Voluntary
Additions of Accounts.  In addition
to its obligation under subsection 2.6(a),
Seller may also designate additional Eligible Accounts as Additional Accounts
if Originator wishes to designate additional Accounts under the Bank
Receivables Sale Agreement at a time when Additional Accounts are not required
pursuant to subsection 2.6(a).


 


(c)           Participation
Interests.  In lieu of, or in
addition to, designating Additional Accounts as required by subsection (a)
above or designating additional Accounts as permitted by subsection (b) above,
Seller may convey Participation Interests to Buyer.  The Rating Agency Condition must be satisfied in connection with
any such conveyance and Seller and Buyer will enter into a supplement to this
Agreement specifying the terms of any such conveyance.


 


(d)           Conditions
for Additions of Additional Accounts. 
Any sale of Receivables from Additional Accounts under subsection 2.6(a) or (b) shall occur only upon satisfaction of the
following conditions (to the extent provided below):


 


(i)            on or before the
fifth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.6(a) and
on or before the tenth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.6(b),
Seller shall give Buyer written notice that such Additional Accounts will be
designated, which notice shall specify the approximate aggregate amount of the
Receivables to be transferred;


 


(ii)           on or before the
Addition Date, (A) Seller shall have delivered to Buyer, a written assignment
in substantially the form of Exhibit A
(the “Assignment”) (which may be
executed by the Administrator on behalf of the Buyer), (B) the representations
and warranties of Seller set out in Exhibit A shall be true with respect
to the Additional Accounts and (C) Seller shall indicate in its computer files
that the Receivables created in connection with the Additional Accounts have
been transferred to Buyer;


 


(iii)          Seller shall not
make more than one such designation per Retailer in any one Monthly Period;


 


(iv)          Seller shall deliver
an Opinion of Counsel with respect to the Receivables in the Additional
Accounts to Buyer (in such numbers and with such additional addressees as Buyer
may reasonably request) substantially in the form of Exhibit D
(with appropriate modifications);


 


17

















 


(v)           in the case of any
designation pursuant to subsection (b), if the designation will cause
the number or principal amount of Additional Accounts to exceed the Maximum
Addition Amount, five Business Days prior written notice shall have been given
to the Rating Agencies and the Rating Agency Condition shall have been
satisfied with respect to the designation;


 


(vi)          such Additional
Accounts shall not relate to Montgomery Ward, the Originator’s program for Home
Depot U.S.A., Inc. existing on the Closing Date or, unless the Rating Agency
Condition has been satisfied, the GECAF Retailers; and


 


(vii)         such Additional
Accounts shall have arisen pursuant to a Retailer’s Credit Card Program Agreement,
unless the Rating Agency Condition has been satisfied and Buyer has consented
to such addition.


 


(e)           Additional
Retailers.  Seller may from time to
time designate retailers as “Additional Retailers” if (i) Originator wishes to
make such a designation under the Bank Receivables Sale Agreement, (ii) Buyer
consents to such designation and (iii) the Rating Agency Condition has been
satisfied with respect to the designation.


 


Section 2.7             Removal of Accounts.


 


(a)           From
time to time, but not more frequently than once during each Monthly Period for
any Retailer, Seller shall have the right to require the reassignment to it or
its designee of all Buyer’s right, title and interest in, to and under the
Transferred Receivables then existing and thereafter created in a specified set
of Accounts (the “Removed Accounts”),
together with the Related Security and Collections with respect thereto, in
each case together with all monies due or to become due and all amounts
received or receivable with respect thereto and Insurance Proceeds relating
thereto, upon satisfaction of the following conditions:


 


(i)            on or before the
tenth Business Day immediately preceding the Removal Date (the “Removal Notice Date”) Seller shall have given
Buyer, Servicer and each Rating Agency written notice of such removal and
specifying the date for removal of the Removed Accounts (the “Removal Date”); Seller shall provide each Rating
Agency with such additional information relating to such removal as the Rating
Agency shall reasonably request;


 


(ii)           on or prior to the
Removal Date, Seller shall have delivered to Buyer an Account Schedule listing
the Removed Accounts;


 


(iii)          with respect to any
Involuntary Removal pursuant to Section 2.7(b),
Seller shall use reasonable efforts to satisfy the Rating Agency Condition; and
as to any other removal, the Rating Agency Condition shall have been satisfied;


 


(iv)          Seller shall have
delivered to Buyer an Officer’s Certificate, dated as of the Removal Date, to
the effect that Seller reasonably believes that (A) in the


 


18

















 


case of any
removal other than an Involuntary Removal, such removal will not, based on the
facts known to such officer at the time of such certification, then or
thereafter cause an Early Amortization Event to occur with respect to any
series of Notes, (B) in the case of any Involuntary Removal, Seller has used
reasonable efforts to avoid having such removal result in an Early Amortization
Event, (C) in either case, no selection procedure believed by Seller to be
materially adverse to the interest of Buyer or any of its creditors has been
used in removing Removed Accounts from among any pool of Accounts of a similar
type (it being understood that Seller will not be deemed to have used such an
adverse selection procedure in connection with any Involuntary Removal) and (D)
in the case of any removal other than an Involuntary Removal, Accounts (or
administratively convenient groups of Accounts or Participation Interests, such
as billing cycles) were chosen for removal on a random basis;


 


(v)           in the case of any
removal pursuant to Section 2.7(a), the
Note Trust Principal Balance in the Removed Accounts shall not exceed the
lesser of (A) the excess of the Free Equity Amount over the Minimum Free Equity
Amount or (B) the excess of the Note Trust Principal Balance over the Required
Principal Balance, all measured as of the end of the most recently ended
Monthly Period; and


 


(vi)          in the case of any
removal pursuant to Section 2.7(b), the
removal shall not cause the Free Equity Amount to be less than the Minimum Free
Equity Amount or cause the Note Trust Principal Balance to be less than the
Required Principal Balance.


 


Upon satisfaction of the above conditions,
Buyer shall execute and deliver to Seller or its designee a written
reassignment in substantially the form of Exhibit B
(the “Reassignment”) (which may be executed
by the Administrator on behalf of the Buyer) and shall, without further action,
be deemed to transfer, assign, set over and otherwise convey to Seller or its
designee, effective as of the Removal Date, without recourse, representation or
warranty, all the right, title and interest of Buyer in and to the Transferred
Receivables arising in the Removed Accounts, the Related Security and Collections
with respect thereto, together with all monies due or to become due and all
amounts received or receivables with respect thereto and Insurance Proceeds
relating thereto and all proceeds of the foregoing.  In addition, Buyer shall execute such other documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by Seller to effect the conveyance of Transferred
Receivables pursuant to this Section.


 


(b)           Seller
shall from time to time designate as Removed Accounts any Accounts designated
for purchase by a Retailer pursuant to the terms of the related Credit Card
Program Agreement (each, an “Involuntary Removal”).  Any repurchase of the Transferred
Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be effected in the manner
and at a price determined in accordance with 
Section 6.1(e), as if the Transferred Receivables being
repurchased were Ineligible Receivables. 
Seller and Buyer acknowledge and agree that all Receivables then


 


19

















 


outstanding in Accounts related to Home Depot U.S.A., Inc. (including
Charged-Off Receivables) shall be purchased by Seller pursuant to this Section
2.7(b) on a date designated by Home Depot U.S.A., Inc. in July 2003.


 


(c)           On
the last day of the Monthly Period in which a Receivable becomes a Charged-Off
Receivable, Buyer shall automatically and without further action or
consideration be deemed to sell, transfer, and otherwise convey to Seller,
without recourse, representation or warranty (except for the warranty that
since the date of the transfer of such Charged-Off Receivable by Seller to
Buyer under this Agreement, Buyer has not sold, transferred or encumbered any
such Receivable or interest therein), all the right, title and interest of
Buyer in and to such Receivable, all monies due or to become due with respect
thereto and all proceeds thereof.  The
purchase price for the Charged-Off Receivables purchased pursuant to this
Section 2.7(c) shall equal the
aggregate amount of Recoveries for that Monthly Period.  Such purchase price shall be payable in full
in cash by Seller on the Business Day preceding the related Payment Date.


 


(d)           Seller
may from time to time, at its option, by notice to Buyer, designate as a
Removed Account any Account (each, an “Inactive Account”) that either
(i) has had a zero balance and on which no charges have been made, in each case
for at least the preceding 12 months or (ii) has a zero balance and the Obligor
of which has agreed to open a credit card account in a related Dual Card
Program in substitution for such Account. 
On or prior to the Removal Date for any Inactive Accounts, Seller shall
have delivered to Buyer an Account Schedule listing the Inactive Accounts that
are to become Removed Accounts.


 


Section 2.8             Discount Option.  (a) For each Retailer, Seller shall have the
option (subject to the limitations described below) to designate at any time a
fixed or floating percentage (the “Discount Percentage”)
of the amount of all Transferred Receivables arising in all Accounts related to
such Retailer on or after the date such designation becomes effective that
would otherwise constitute Principal Receivables to be treated as Finance
Charge Receivables.  Seller may from
time to time increase, reduce or eliminate (subject to the limitations
described below), the Discount Percentage related to such Retailer for Discount
Option Receivables arising in an Account on and after the date of such change.  Seller shall provide 30 days’ prior written
notice to Servicer, Buyer, and each Rating Agency of any initial designation,
increase, reduction or elimination, and such initial designation, increase,
reduction or elimination shall become effective on the date specified therein
only if (i) Seller has delivered to Buyer an Officer’s Certificate to the
effect that, based on the facts known to such officer at the time, Seller
reasonably believes that such initial designation, increase, reduction or
elimination will not at the time of its occurrence cause an Early Amortization
Event, or an event which with notice or the lapse of time would constitute an
Early Amortization Event, to occur with respect to any series of Notes, (ii) in
the case of any initial designation or increase, the Discount Percentage for
such Retailer shall not exceed 5% after giving effect to that initial
designation or increase, unless the Rating Agency Condition has been satisfied
with respect to the increase and (iii) Buyer consents to such designation,
increase, reduction or elimination.


 


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(b)           The
portion of the Principal Receivables arising in Accounts relating to any
Retailer as to which a Discount Percentage is in effect that shall be
recharacterized as Finance Charge Receivables shall equal the product of (x) an
amount (as to any Retailer’s program, the “Gross Principal Balance”)
equal to the aggregate Outstanding Balance of such Principal Receivables
(before giving effect to the recharacterization) and (y) a fraction the
numerator of which is the Discount Option Receivables relating to the Retailer
and the denominator of which is the Gross Principal Balance for such
Retailer.  The fraction referred to in
the preceding clause (y) shall be
determined not later than the 10th day of each calendar month (or,
if such 10th day is not a Business Day, on the next Business Day)
using the numerator and denominator as of the end of the most recent Monthly
Period, and that fraction shall be used until recalculated in the next month.  For this purpose, “Discount Option
Receivables” means, as to any Retailer, on any Date of Processing on and
after the date on which Seller’s exercise of its discount option for such
Retailer takes effect, the sum of (i) the aggregate amount of Discount Option
Receivables relating to such Retailer at the end of the prior day (which
amount, prior to the date on which Seller’s exercise of its discount option for
such Retailer takes effect and with respect to Principal Receivables generated
in such Retailer’s program prior to such date, shall be zero), plus (ii) the
product of (A) the Discount Percentage for such Retailer and (B) the amount of
Principal Receivables (before giving effect to the recharacterization referred
to above) created on such day in such Retailer’s program, minus (iii) any
Discount Option Receivables Collections (as defined below) received on such
Date of Processing.


 


(c)           Notwithstanding
clause (b), the portion of 
Collections of Principal Receivables arising in Accounts relating to any
Retailer as to which a Discount Percentage is in effect that shall be
recharacterized as Collections of Finance Charge Receivables (“Discount
Option Receivables Collections”) shall equal, on any Date of Processing on
and after the date on which Seller’s exercise of its discount option for such
Retailer takes effect, the product of (a) a fraction the numerator of which is
the amount of the Discount Option Receivables relating to such Retailer and the
denominator of which is Gross Principal Balance for such Retailer, in each case
(for both numerator and denominator) as most recently determined pursuant to
clause (b) and (b) Collections of Principal Receivables relating to such
Retailer (before giving effect to the recharacterization) received on such Date
of Processing.


 


Section 2.9             Additional
Sellers.  Seller may permit
Originator to designate additional or substitute Persons to be included as
“Sellers” under (and as defined in) the Bank Receivables Sale Agreement if the
Rating Agency Condition is satisfied with respect to such designation.


 


Section 2.10           Additional
Originators.  Seller may
permit Monogram to designate additional or substitute Persons to be included as
“Originators” under (and as defined in) the Bank Receivables Sale Agreement and
this Agreement if the Rating Agency Condition is satisfied with respect to such
designation.


 


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ARTICLE III



CONDITIONS PRECEDENT 


 


Section 3.1             Conditions to Initial Transfer.  The initial sale or conveyance hereunder
shall be subject to satisfaction of each of the following conditions precedent
(any one or more of which may be waived in writing by Buyer) as of the Closing
Date:


 


(a)           Documents. 
This Agreement or counterparts hereof shall have been duly executed by,
and delivered to, Seller and Buyer, and Buyer shall have received such
documents, instruments, agreements and legal opinions as Buyer shall reasonably
request in connection with the transactions contemplated by this Agreement,
each in form and substance reasonably satisfactory to Buyer.


 


(b)           Governmental Approvals.  Buyer shall have received satisfactory
evidence that Seller has obtained all required consents and approvals of all
Persons, including all requisite Governmental Authorities, to the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.


 


(c)           Compliance with Laws.  Seller shall be in compliance with all
applicable foreign, federal, state and local laws and regulations, except to
the extent that the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.


 


Section 3.2             Conditions to all Transfers.  Each sale hereunder (including the initial sale) shall be subject
to satisfaction of the following further conditions precedent (any one or more
of which, except clause (b) below, may
be waived in writing by Buyer) as of the Transfer Date therefor:


 


(a)           The
representations and warranties of Seller contained herein or in any other Related
Document required to be made on such Transfer Date shall be true and correct in
all material respects as of such Transfer Date, both before and after giving
effect to such sale; and


 


(b)           Seller
shall be in compliance in all material respects with each of its covenants and
other agreements set forth herein.


 


The consummation by Seller of the sale, as applicable, of Transferred
Assets on any Transfer Date shall be deemed to constitute, as of any such
Transfer Date, a representation and warranty by Seller that the conditions in clauses (a) and (b)
of this Section 3.2 have been
satisfied.


 


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ARTICLE IV



OTHER MATTERS RELATING TO SELLER


 


Section 4.1             Merger or Consolidation of, or
Assumption of the Obligations of, Seller, etc.


 


(a)           Seller
shall not consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person
unless:


 


(i)            the Person formed
by such consolidation or into which Seller is merged or the Person which
acquires by conveyance or transfer the properties and assets of Seller
substantially as an entirety shall be, if Seller is not the surviving entity,
an entity organized and existing under the laws of the United States of America
or any State or the District of Columbia, and, if Seller is not the surviving
entity, such entity shall expressly assume, by an agreement supplemental
hereto, executed and delivered to Buyer, in form reasonably satisfactory to
Buyer, the performance of every covenant and obligation of Seller hereunder;


 


(ii)           Seller has
delivered to Buyer (A) an Officer’s Certificate stating that such
consolidation, merger, conveyance or transfer and such supplemental agreement
comply with this Section and that all conditions precedent herein provided for
relating to such transaction have been complied with, and (B) an Opinion of
Counsel to the effect that such supplemental agreement is a valid and binding
obligation of such surviving entity enforceable against such surviving entity
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally from time to time in effect and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);


 


(iii)          the business entity
into which Seller shall merge or consolidate, or to which such conveyance or
transfer is made, shall be (x) a business entity that may not become a debtor
in any case, action or other proceeding under Title 11 of the United States
Code or (y) a special-purpose corporation, the powers and activities of which
shall be limited to the performance of Seller’s obligations under this
Agreement and the other Related Documents;


 


(iv)          if Seller is not the
surviving entity, the surviving entity shall file new UCC-1 financing
statements with respect to the interest of Buyer in the Transferred Assets, if
any; and


 


(v)           prior written notice
shall have been delivered to the Rating Agencies with respect to such merger,
conveyance or transfer, and the Rating Agency Condition shall have been
satisfied.


 


(b)           This
Section 4.1 shall not be construed to prohibit or in any way limit Seller’s
ability to effectuate any consolidation or merger pursuant to which Seller
would be the surviving entity.


 


(c)           The
obligations of Seller hereunder shall not be assignable nor shall any Person
succeed to the obligations of Seller hereunder except in each case in
accordance


 


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with (i) the provisions of the foregoing paragraphs, (ii) Section
2.9 of this Agreement or (iii) conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1) for which Seller delivers
an Officer’s Certificate to Buyer indicating that Seller reasonably believes
that such action will not result in a Material Adverse Effect, (2) which meet
the requirements of clause (ii) of paragraph (a) and (3) for
which such purchaser, transferee, pledgee or entity shall expressly assume, in
an agreement supplemental hereto, executed and delivered to Buyer in writing in
form satisfactory to Buyer, the performance of every covenant and obligation of
Seller thereby conveyed.


 


ARTICLE V



BANKRUPTCY EVENTS


 


Section 5.1             Rights upon the Occurrence of a
Bankruptcy Event.  If a Bankruptcy
Event occurs with respect to Seller, Seller shall on the day any such event
occurs, immediately cease to transfer Principal Receivables to Buyer and shall
promptly give notice of such event to Indenture Trustee, Buyer and the Rating
Agencies.  Notwithstanding any cessation
of the transfer to Buyer of additional Principal Receivables, Principal
Receivables transferred to Buyer prior to the occurrence of such Bankruptcy
Event and Collections in respect of such Principal Receivables, and Finance
Charge Receivables whenever created accrued in respect of such Principal
Receivables, shall continue to be property of Buyer.


 


ARTICLE VI



REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Section 6.1             Representations and Warranties
of Seller. (a)  To induce Buyer to
accept the Transferred Assets, Seller makes the representations and warranties
in subsections (i) through (viii) to Buyer, as of the Closing Date and
each subsequent Transfer Date.


 


(i)            Valid Existence; Power and Authority.  Seller (A) is a limited liability
company duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization; (B) is duly qualified to conduct business and
is in good standing in each other jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification and where
the failure to be so qualified or in good standing would have a Material
Adverse Effect; and (C)  has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement.


 


(ii)           UCC Information.  The true legal name of Seller as registered in the jurisdiction
of its organization, and the current location of Seller’s jurisdiction of
organization and the address of its chief executive office are set forth in Schedule 6.1(a) and such location and
address have not changed within the past 12 months.  In addition, Schedule 6.1(a)
lists Seller’s (A) federal employer


 


24

















 


identification
number and (B) organizational identification number as designated by the
jurisdiction of its organization.


 


(iii)          Authorization of Transaction; No Violation.  The execution, delivery and performance by
Seller of this Agreement and the other Related Documents to which Seller is a
party and the creation and perfection of all Liens and ownership interests
provided for herein: (A) have been duly authorized by all necessary action on
the part of Seller, and (B) do not violate any provision of any law or
regulation of any Governmental Authority, or contractual restrictions binding
on Seller, except where such violations, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.


 


(iv)          Enforceability.  On or prior to the Closing Date, each of the
Related Documents to which Seller is a party shall have been duly executed and
delivered by Seller and each such Related Document shall then constitute a
legal, valid and binding obligation of Seller enforceable against it in
accordance with its terms, subject to bankruptcy, receivership,
conservatorship, insolvency, reorganization, moratorium and other similar laws
of general applicability relating to or affecting creditors’ rights and to
general principles of equity.


 


(v)           Accuracy of Certain Information.  All written factual information heretofore
furnished by Seller to Buyer with respect to the Transferred Receivables for
the purposes of, or in connection with, this Agreement was true and correct in
all material respects on the date as of which such information was stated or
certified.


 


(vi)          Use of Proceeds.  No proceeds received by Seller under this Agreement will be used
by it for any purpose that violates Regulation U of the Federal Reserve Board.


 


(vii)         Judgment or Tax
Lien.  Seller is not aware of any
judgment or tax lien filing against Seller.


 


(viii)        Transferred Receivables.  With respect to Transferred Receivables and
Additional Accounts, Seller represents and warrants that:


 


(A)          each Transferred
Receivable satisfies the criteria for an Eligible Receivable as of the
applicable Transfer Date;


 


(B)           this Agreement
creates a valid and continuing security interest in the Transferred Receivables
in favor of Buyer, which (x) with respect to Transferred Receivables existing
as of the Closing Date and thereafter created in the Initial Accounts and 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 Insurance Proceeds relating thereto and the proceeds thereof, will
be enforceable upon execution of this Agreement against Seller and with respect
to Transferred Receivables in Additional Accounts as of the


 


25

















 


applicable
Addition Date and thereafter created, and the Related Security and Collection
with respect thereto, together with all monies due or to become due and all
amounts received or receivable with respect thereto and Insurance Proceeds
relating thereto and the proceeds thereof, will be enforceable against Seller
and as of the Addition Date, in each case as such enforceability may be limited
by applicable Debtor Relief Laws, now or hereafter in effect, and by general
principles of equity (whether considered in a suit at law or in equity) and (y)
upon filing of the financing statements described in Section  2.1 and, in the case of Transferred
Receivables thereafter created, upon the creation thereof, will be prior to all
other Liens (other than Permitted Encumbrances);


 


(C)           the Transferred
Receivables constitute “accounts” within the meaning of UCC Section 9-102;


 


(D)          immediately prior to
the conveyance of the Transferred Receivables pursuant to this Agreement,
Seller owns and has good and marketable title to, or has a valid security
interest in, the Transferred Receivables free and clear of any Lien, claim or
encumbrance of any Person, (other than Permitted Encumbrances);


 


(E)           all authorizations,
consents, orders or approvals of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by Seller in
connection with the conveyance by Seller of the Transferred Receivables to
Buyer have been duly obtained, effected or given and are in full force and
effect;


 


(F)           Seller has caused or
will have caused, within ten (10) days of the Closing Date or the applicable
Addition Date, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the security interest granted to Buyer under this Agreement in the
Transferred Receivables arising in the Initial Accounts and Additional
Accounts, respectively; and


 


(G)           subject to Permitted
Encumbrances, other than the transfer and assignment and the security interest
granted to Buyer pursuant to this Agreement, Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Transferred Receivables and Seller has not authorized the filing of and is not
aware of any financing statements against Seller that included  a description of collateral covering the
Transferred Receivables.


 


The representations and warranties described in this Section 6.1(a) shall survive the sale of the
Transferred Assets to Buyer, any subsequent assignment or sale of the
Transferred Assets by Buyer, and the termination of this Agreement and the
other Related Documents and shall continue until the payment in full of all
Transferred Assets.


 


26

















 


(b)           Seller
agrees that each Receivable in any Account sold by Monogram to Buyer pursuant
to the Prior Transfer Agreement shall be deemed for all purposes
(including the reassignment obligations under Section 2.7 and this Section
6.1)  to have been sold by Seller to Buyer pursuant to this
Agreement as of the day of such actual sale, as if this Agreement had been in
effect on that day.


 


(c)           Upon
discovery by Seller or Buyer of a breach of any of the representations and
warranties by Seller set forth in this Section 6.1,
the party discovering such breach shall give prompt written notice to the
other.  Seller agrees to cooperate with
Buyer in attempting to cure any such breach.


 


(d)           If
any representation or warranty of Seller contained in Section
6.1(a)(viii), is not true and correct in any material respect
as of the date specified therein with respect to any Transferred Receivable or
any Account and as a result of such breach any Transferred Receivables in the
related Account become Charged-Off Receivables or Buyer’s rights in, to or
under such Transferred Receivables or the proceeds of such Transferred
Receivables are impaired or such proceeds are not available for any reason to
Buyer free and clear of any Lien other than Permitted Encumbrances, unless
cured within 60 days (or such longer period, not in excess of 150 days, as may
be agreed to by Buyer) after the earlier to occur of the discovery thereof by
Seller or receipt by Seller or a designee of Seller of notice thereof given by
Buyer, then such Transferred Receivable shall be designated an “Ineligible
Receivable” provided that such Transferred Receivables will not be
deemed to be Ineligible Receivables but will be deemed Eligible Receivables if,
on any day prior to the end of such 60-day or longer period, (i) the relevant
representation and warranty shall be true and correct in all material respects
as if made on such day and (ii) Seller shall have delivered an Officer’s
Certificate describing the nature of such breach and the manner in which the
relevant representation and warranty became true and correct.


 


(e)           On
the first Payment Date after any Transferred Receivable is designated as an
Ineligible Receivable, Seller shall repurchase such Ineligible Receivable from
Buyer by paying Buyer a cash purchase price. The purchase price for the
Ineligible Receivables in any Account shall equal the Outstanding Balance of
the Principal Receivables in such Account, plus the accrued Finance Charge
Receivables in such Account as of the end of the Monthly Period prior to the
repurchase date.


 


(f)            If
any representation or warranty of Seller contained in Section
6.1(a)(i), 6.1(a)(ii), 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not
true and correct in any material respect and such breach has a material adverse
effect on the Transferred Receivables transferred to Buyer by Seller or the
availability of the proceeds thereof to Buyer, Seller shall be obligated to
accept a reassignment of the Transferred Receivables if such breach and any
material adverse effect caused by such breach is not cured within 60 days of
such notice (or within such longer period, not in excess of 150 days, as may be
specified in such notice), on the terms set forth below; provided that
such Transferred Receivables will not be reassigned to Seller if, on any day
prior to the end of such 60-day or longer period (i) the relevant
representation and warranty shall be true and correct in all material respects
as if made on such day and (ii) Seller shall have delivered an Officer’s


 


27

















 


Certificate describing the nature of such breach and the manner in
which the relevant representation and warranty became true and correct.


 


Seller shall pay to Buyer in immediately available funds not later than
12:00 noon, New York City time, on such Business Day as Buyer shall designate
following the Monthly Period in which such reassignment obligation arises, in
payment for such reassignment, an amount equal to the Aggregate Reassignment
Amount.  The payment of such deposit
amount in immediately available funds shall otherwise be considered payment in
full of all of the Transferred Receivables.


 


(g)           Upon
the payment, if any, required to be made to Buyer as provided in Section 6.1(e) or 6.1(f), Buyer shall automatically and without
further action be deemed to transfer, assign, set over and otherwise convey to
Seller or its designee, without recourse, representation or warranty, all the
right, title and interest of Buyer in and to the applicable Transferred
Receivables, all moneys due or to become due and all amounts received with
respect thereto and all proceeds thereof. 
Buyer shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by
Seller to effect the conveyance of such Transferred Receivables pursuant to
this Section.


 


Section 6.2             Affirmative Covenants of Seller.  Seller covenants and agrees that, unless
otherwise consented to by Buyer, from and after the Closing Date and until the
date after the Agreement Termination Date when the Outstanding Balance of all
Transferred Receivables have been reduced to zero:


 


(a)           Account Allocations.  If Seller is unable for any reason to transfer Transferred Receivables
to Buyer in accordance with the provisions of this Agreement (including by
reason of the application of the provisions of Section
5.1 or an order by any Governmental Authority that Seller not
transfer any additional Principal Receivables to Buyer) then, in any such
event:  (i) Seller agrees to allocate
and pay to Buyer, after the date of such inability, all Collections with
respect to Principal Receivables and all amounts which would have constituted
Collections with respect to Principal Receivables but for Seller’s inability to
transfer such Transferred Receivables (up to an aggregate amount equal to the
amount of Principal Receivables held by Buyer on such date of inability); (ii)
Seller agrees that such amounts shall be deemed Collections of Transferred
Receivables; and (iii) for only so long as all Collections and all amounts
which would have constituted Collections are allocated and applied in
accordance with clauses (i) and (ii), Principal Receivables (and all amounts
which would have constituted Principal Receivables, but for Seller’s inability
to transfer Transferred Receivables to Buyer) that are charged off as
uncollectible in accordance with this Agreement shall continue to be allocated
in accordance with the Servicing Agreement, and all amounts that would have
constituted Principal Receivables, but for Seller’s inability to transfer
Transferred Receivables to Buyer shall be deemed to be Principal Receivables
for the purpose of all calculations under the Related Documents.  If Seller is unable pursuant to any
Requirement of Law to allocate Collections as described above, Seller agrees
that it shall allocate collections, charge-offs and other incidents of the
receivables in the Accounts between Transferred Receivables and other
receivables outstanding in the Accounts on a


 


28

















 


basis reasonably intended to approximate the actual portions allocable
to Transferred Receivables and other receivables, respectively.  The parties hereto agree that Finance Charge
Receivables, whenever created, accrued in respect of Principal Receivables that
have been conveyed to Buyer, or that would have been conveyed to Buyer but for
the above described inability to transfer such Receivables, shall continue to
be held by Buyer notwithstanding any cessation of the transfer of additional
Principal Receivables to Buyer.  With
respect to the Montgomery Ward program and Originator’s program for Home Depot
U.S.A., Inc. existing on the Closing Date, Seller shall allocate collections,
charge-offs and other incidents of the receivables in each such program between
Transferred Receivables outstanding in that program and other receivables
outstanding in that program on a basis reasonably intended to approximate the
actual portions allocable to Transferred Receivables and other receivables,
respectively.


 


(b)           Notice of Material Event.  Seller shall promptly inform Buyer in
writing of the occurrence of any of the following, in each case setting forth
the details thereof and what action, if any, Seller proposes to take with
respect thereto:


 


(i)            any Litigation
commenced or threatened against Seller or with respect to or in connection with
all or any substantial portion of the Transferred Assets or developments in
such Litigation, in each case, that Seller believes has a reasonable risk of
being determined adversely and having a Material Adverse Effect;


 


(ii)           the commencement of
a proceeding against Seller seeking a decree or order in respect of Seller
(A) under the Federal Deposit Insurance Act or any other applicable
federal, state or foreign bankruptcy or other similar law, (B) appointing
a custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for Seller or for any substantial part of Seller’s assets, or
(C) ordering the winding-up or liquidation of the affairs of Seller; or


 


(iii)          any default by
Seller in performance of any of its obligations under this Agreement, any
notice received by Seller from Originator relating to any default by Originator
in performance of its obligations under the Bank Receivables Sale Agreement or
any actual knowledge on the part of Seller of such Originator default.


 


(c)           Notice of Liens.  Seller shall notify Buyer promptly after
becoming aware of any Lien on any Transferred Asset other than Permitted
Encumbrances.


 


(d)           Information
for Reports.  Seller shall promptly
deliver any material written information, documents, records or reports with
respect to the Transferred Receivables that Buyer shall reasonably request.


 


(e)           Deposit of Collections.  Seller shall transfer to Buyer or Servicer
on its behalf, promptly, and in any event no later than the Business Day after
receipt thereof, all Collections it may receive in respect of Transferred
Assets.


 


29

















 


(f)            Credit Card Program Agreement and Policies.  Seller shall enforce Originator’s obligation
under the Bank Receivables Sale Agreement to comply with and perform its
obligations under the Credit Card Program Agreements and the Contracts relating
to the Accounts and the Credit and Collection Policies except insofar as any
failure to comply or perform would not materially or adversely affect the
rights of Buyer.  Seller may permit
Originator to change the terms and provisions of the Credit Card Program
Agreements, the Contracts or the Credit and Collection Policies (including the
reduction of the required minimum monthly payment, the calculation of the
amount, or the timing, of charge offs and periodic finance charges and other
fees assessed thereon), but subject to Section 6.3(b) and only if such
change is made applicable to any comparable segment of the revolving credit
card accounts owned and serviced by Originator which have characteristics the
same as, or substantially similar to, the Accounts that are the subject of such
change, except as otherwise restricted by an endorsement, sponsorship or other
agreement between Originator and an unrelated third party or by the terms of
the Credit Card Program Agreements.


 


Section 6.3             Negative Covenants of Seller.  Seller covenants and agrees that, without
the prior written consent of Buyer, from and after the Closing Date and until
the date after the Agreement Termination Date when the Outstanding Balances of
all Transferred Receivables transferred hereunder prior to such Agreement
Termination Date have been reduced to zero:


 


(a)           Liens.  Seller shall not create, incur, assume or
permit to exist any Lien, other than Permitted Encumbrances, on or with respect
to the Transferred Assets.


 


(b)           Periodic Finance Charges and Other
Fees.  Except as otherwise required
by any Requirement of Law, or as is deemed by Originator to be necessary in
order for it to maintain its credit card business, based upon Originator’s good
faith assessment, in its sole discretion, of the nature of the competition in
the credit card business, Seller shall not at any time permit Originator to
reduce the periodic finance charges assessed on any Transferred Receivable or
other fees on any Account if, as a result of such reduction, Seller’s
reasonable expectation of the portfolio yield for any series of notes secured,
directly or indirectly, by the Transferred Receivables, as of the date of such
reduction would be less than the then base rate for that series, as determined
in accordance with the terms of that series. 
In any event, Seller shall not permit Originator to reduce the periodic
finance charges assessed on any Transferred Receivable or other fees on any
Account without the consent of Buyer, which consent Buyer shall provide unless
the giving of such consent is prohibited by any agreement to which Buyer is a
party.


 


(c)           UCC Matters. 
Seller shall not change its state of organization or incorporation or
its name such that any financing statement filed to perfect Buyer’s interests under
this Agreement would become seriously misleading, unless Seller shall have
given Buyer not less than 30 days’ prior written notice of such change.


 


(d)           No Proceedings.  From and after the Closing Date and until the date one year plus
one day following the date on which all amounts due with respect to securities
rated by a Rating Agency that were issued by any entity holding Transferred
Assets have


 


30

















 


been paid in full in cash, Seller shall not, directly or indirectly,
institute or cause to be instituted against Buyer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any
way limit Seller’s right to pursue any other creditor rights or remedies that
Seller may have under any applicable law. 
Without prejudice to the survival of any other agreement of the Seller
hereunder, the agreements and obligations of the Seller under this Section
6.3(d) shall survive the termination to this Agreement.


 


(e)           Sale
Characterization.  For accounting
purposes, Seller shall not account for the transactions contemplated by this
Agreement in any manner other than, with respect to the sale of each
Transferred Receivable, as a true sale and/or absolute assignment of its full
right, title and ownership interest in the related Transferred Assets to
Buyer.  Seller shall also maintain its
records and books of account in a manner which clearly reflects each such sale
of the Transferred Receivables to Buyer.


 


Section 6.4             No-Petition Covenant of Buyer.  Buyer covenants and agrees that, from and
after the Closing Date and until the date one year plus one day following the
date on which all amounts due with respect to securities rated by a Rating
Agency that were issued by any entity holding Transferred Assets have been paid
in full in cash, Buyer shall not, directly or indirectly, institute or cause to
be instituted against Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any federal or
state bankruptcy or similar law; provided
that the foregoing shall not in any way limit Buyer’s right to pursue any other
creditor rights or remedies that Seller may have under any applicable law.  Without prejudice to the survival of any
other agreement of the Buyer hereunder, the agreements and obligations of the
Buyer under this Section 6.4 shall
survive the termination of this Agreement.


 


ARTICLE VII



MISCELLANEOUS


 


Section 7.1             Notices.  Except as otherwise provided herein,
whenever it is provided herein that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties by any other parties, or whenever any of the parties
desires to give or serve upon any other parties any communication with respect
to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be deemed to
have been validly served, given or delivered (a) upon the earlier of
actual receipt and three Business Days after deposit in the United States mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar
facsimile transmission (with such telecopy or facsimile promptly confirmed by
delivery of a copy by personal delivery or United States mail as otherwise
provided in this Section 7.1),
(c) one Business Day after deposit with a reputable overnight courier with
all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number set forth below or to such other address (or


 


31

















 


facsimile number) as may be substituted by notice given as herein
provided.  The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice.  Failure or delay in
delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any Person (other than Buyer) designated
in any written communication provided hereunder to receive copies shall in no
way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.  Notwithstanding the foregoing, whenever it
is provided herein that a notice is to be given to any other party hereto by a
specific time, such notice shall be effective only if actually received by such
party prior to such time, and if such notice is received after such time or on
a day other than a Business Day, such notice shall be effective only on the
immediately succeeding Business Day.


 


If to Seller:



RFS HOLDING, L.L.C.

1600 Summer Street, 6th Floor

Stamford, CT 06927

Attention:                                         Manager
- Securitization

Telephone:            (203) 357-4756

Facsimile:               (203) 357-6796


 


with a copy
to:


 


General Electric Capital Corporation

1600 Summer Street, 4th Floor

Stamford, CT  06927

Attention:              Portfolio Manager

Telephone:            (203) 357-4328

Facsimile:               (203) 961-2953


 


If to Buyer:


 


RFS FUNDING TRUST

c/o Deutsche Bank Trust Company Americas 

Corporate Trust and Agency Services — Structured Finance Services

60 Wall Street, 26th Floor

MS NYC60-2606

New York, New York 10005

Attention:              Susan Barstock

Telephone:            (212) 454-4298

Facsimile:               (212) 797-8606


 


with a copy to:


 


General Electric Capital Corporation, as
Administrator, and

Monogram Credit Card Bank of Georgia, as Servicer

7840 Roswell Road, Bldg. 100, Suite 210




32

















 


Atlanta, Georgia  30350

Attention:              Chief Financial
Officer

Telephone:            (770) 353-5337

Facsimile:               (770) 353-2464


 


Section 7.2             No Waiver; Remedies.  (a) Either party’s failure, at any time or
times, to require strict performance by the other party hereto of any provision
of this Agreement shall not waive, affect or diminish any right of such party
thereafter to demand strict compliance and performance herewith or
therewith.  Any suspension or waiver of
any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
of the same or a different type.  None
of the undertakings, agreements, warranties, covenants and representations of
either party contained in this Agreement, and no breach or default by either
party hereunder or thereunder, shall be deemed to have been suspended or waived
by the other party unless such waiver or suspension is by an instrument in
writing signed by an officer of or other duly authorized signatory of such
party and directed to the defaulting party specifying such suspension or
waiver.


 


(b)           Each
party’s rights and remedies under this Agreement shall be cumulative and
nonexclusive of any other rights and remedies that such party may have under
any other agreement, including the other Related Documents, by operation of law
or otherwise.


 


Section 7.3             Successors and Assigns.  This Agreement shall be binding upon and
shall inure to the benefit of Seller and Buyer and their respective successors
and permitted assigns, except as otherwise provided herein.  Except as provided below and in Sections
2.9 or 4.1 of this Agreement, neither Buyer nor Seller may assign,
transfer, hypothecate or otherwise convey its rights, benefits, obligations or
duties hereunder, without (i) satisfying the Rating Agency Condition and (ii)
obtaining the prior express written consent of the other party.  Any such purported assignment, transfer,
hypothecation or other conveyance by Seller without the prior express written
consent of Buyer and the satisfaction of the Rating Agency Condition (if
applicable) shall be void.  Seller
acknowledges that under the Funding Agreement and the Indenture Security
Agreement, Buyer will grant security interests in its rights granted hereunder
to the Lender and the Indenture Trustee, and upon any exercise of remedies with
respect to such security interests, the Lender and the Indenture Trustee shall
have, to the extent of such assignment, all rights of Buyer hereunder and such
transferee may in turn transfer such rights. 
The terms and provisions of this Agreement are for the purpose of defining
the relative rights and obligations of Seller and Buyer with respect to the
transactions contemplated hereby, and no Person shall be a third-party
beneficiary of any of the terms and provisions of this Agreement.


 


Section 7.4             Termination.  This Agreement shall create and constitute
the continuing obligations of the parties hereto in accordance with its terms,
and shall remain in full force and effect until the earlier of (a) the
termination of the Buyer as provided in the Trust Agreement and (b) the date
selected by Seller upon prior notice thereof to Buyer (such date the “Agreement
Termination Date”).


 


33

















 


Section 7.5             Survival.  Except as otherwise expressly provided
herein or in any other Related Document, no termination or cancellation (regardless
of cause or procedure) of any commitment made by Seller under this Agreement
shall in any way affect or impair the obligations, duties and liabilities of
Seller or the rights of Seller relating to any unpaid portion of any and all
obligations of Seller to Buyer, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination,
or any transaction or event, the performance of which is required after the
Agreement Termination Date.  Except as
otherwise expressly provided herein or in any other Related Document, all
undertakings, agreements, covenants, warranties and representations of or
binding upon Seller, and all rights of Seller hereunder shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the date after the Agreement
Termination Date when the Outstanding Balances of all Transferred Receivables
transferred hereunder prior to such Agreement Termination Date have been
reduced to zero; provided, that the
rights and remedies pursuant to the provisions of Sections 2.5,
6.3(d), 7.3, 7.11 and 7.13 shall be continuing and
shall survive any termination of this Agreement.


 


Section 7.6             Complete Agreement; Modification
of Agreement.  This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supersedes all prior agreements and understandings
relating to the subject matter hereof and thereof, and may not be modified, altered
or amended except by written agreement of the parties hereto.  The parties shall give prior written notice
of any material amendment of this Agreement to the Rating Agencies.


 


Section 7.7             GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL.  (a)  THIS AGREEMENT AND
THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.


 


(b)           EACH PARTY HERETO
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE
BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS
AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY
A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED  FURTHER, THAT NOTHING IN
THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
RECEIVABLES OR ANY SECURITY FOR THE OBLIGATIONS OF SELLER ARISING HEREUNDER OR
TO


 


34

















 


ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER.  EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. 
EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN
ACCORDANCE WITH SECTION 7.1  AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID.  NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.


 


BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 7.8             Counterparts.  This Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.


 


Section 7.9             Severability.  Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


35

















 


Section 7.10           Section Titles.  The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.


 


Section 7.11           No Setoff.  Seller’s obligations under this Agreement
shall not be affected by any right of setoff, counterclaim, recoupment, defense
or other right Seller might have against Buyer, all of which rights are hereby
expressly waived by Seller.


 


Section 7.12           Confidentiality.  NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT
APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS
TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY
PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE
FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION.  THE PRECEDING SENTENCE IS INTENDED TO CAUSE
THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF
CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR
PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER
CONSISTENT WITH SUCH PURPOSE.  IN
ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE
RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX
MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.


 


Section 7.13           Further Assurances.  (a) Seller shall, at its sole cost and
expense, upon request of Buyer, promptly and duly authorize, execute and/or
deliver, as applicable, any and all further instruments and documents and take
such further actions that may be necessary or desirable or that Buyer may
request to carry out more effectively the provisions and purposes of this
Agreement or to obtain the full benefits of this Agreement and of the rights
and powers herein granted, including authorizing and filing any financing or
continuation statements under the UCC with respect to the ownership interests
or Liens granted hereunder.  Seller
hereby authorizes Buyer to file any such financing or continuation statements
without the signature of Seller to the extent permitted by applicable law.  A carbon, photographic or other reproduction
of this Agreement or of any notice or financing statement covering the
Transferred Assets or any part thereof shall be sufficient as a notice or
financing statement where permitted by law. 
If any amount payable under or in connection with any of the Transferred
Assets is or shall become evidenced by any instrument, such instrument, other
than checks and notes received in the ordinary course of business, shall be
duly endorsed in a manner satisfactory to Buyer immediately upon Seller’s receipt
thereof and promptly delivered to or at the direction of Buyer.


 


36

















 


(b)           If
Seller fails to perform any agreement or obligation under this Section 7.13, Buyer may (but shall not
be required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of Buyer incurred in connection
therewith shall be payable by Seller upon demand of Buyer.


 


(c)           Seller
shall deliver to Buyer (i) upon the execution and delivery of each amendment of
this Agreement, an Opinion of Counsel to the effect specified in Exhibit C; (ii) on each Addition Cut-Off Date on
which any Additional Accounts are to be designated as Accounts pursuant to Section
2.6, an Opinion of Counsel substantially in the form of Exhibit D; and (iii) on or before March 31 of
each year following the year in which the Closing Date occurs, an Opinion of
Counsel substantially in the form of Exhibit E.


 


Section 7.14           Accounting Changes.  If any Accounting Changes occur and such
changes result in a change in the standards or terms used herein, then the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of such Persons
and their Subsidiaries shall be the same after such Accounting Changes as if
such Accounting Changes had not been made. 
If the parties hereto agree upon the required amendments to this
Agreement, then after appropriate amendments have been executed and the
underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained herein shall, only to the extent of such Accounting
Change, refer to GAAP consistently applied after giving effect to the
implementation of such Accounting Change. 
If such parties cannot agree upon the required amendments within 30 days
following the date of implementation of any Accounting Change, then all financial
statements delivered and all standards and terms used herein shall be prepared,
delivered and used without regard to the underlying Accounting Change.


 


Section 7.15           No
Indirect or Consequential Damages.  NO PARTY TO THIS
AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT,
ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER
PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF
ANY TRANSACTION CONTEMPLATED HEREUNDER.


 


Section 7.16           Limitation of Liability of the
Trustee.  Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by
Deutsche Bank Trust Company Delaware, not in its individual capacity but solely
in its capacity as Trustee of Buyer, and in no event shall Deutsche Bank Trust
Company Delaware, in its individual capacity, or any beneficial owner of Buyer
have any liability for the representations, warranties, covenants, agreements
or other obligations of Buyer hereunder, as to all of which recourse shall be
had solely to the assets of Buyer.  For
all purposes of this Agreement, in the performance of any duties or obligations
of Buyer


 


37

















 


thereunder, the Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VIII of the Trust
Agreement.


 


38

















 


IN WITNESS WHEREOF, Seller and Buyer have caused this Receivables Purchase
and Contribution Agreement to be duly executed by their respective officers as
of the day and year first above written.


 


	
   

  	
  RFS
  HOLDING, L.L.C., as
  Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Iain J. Mackay

  
	
   

  	
  Name:

  	
  Iain J. Mackay

  
	
   

  	
  Title:

  	
  Chief Financial Officer and Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RFS
  FUNDING TRUST,
  Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: DEUTSCHE BANK TRUST

  COMPANY DELAWARE, not

  in its individual capacity but solely

  as Trustee on behalf of the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eileen M. Hughes

  
	
   

  	
  Name:

  	
  Eileen M. Hughes

  
	
   

  	
  Title:

  	
  Vice President

  
								



 


S-1

















 


SCHEDULE 1


 


LIST OF
ACCOUNTS


 


The initial Account Schedule consists of the
following compact disks delivered to Deutsche Bank Trust Company Delaware, as
trustee, in connection with the Prior Transfer Agreement:  (a) two disks listing the “Designated
Accounts” under the Prior Transfer Agreement as of December 30, 2002 and (b)
one disk listing additional “Designated Accounts” that were designated under
the Prior Transfer Agreement in March, 2003. 
The initial Account Schedule does not identify the aggregate amount of
receivables in the Accounts described therein.


 

















 


SCHEDULE
6.1(a)


 


SELLER’S
UCC INFORMATION


 


Legal Name


 


RFS Holding, L.L.C.


 


Jurisdiction of Organization


 


Delaware


 


Address of Chief Executive Officer


 


1600 Summer Street, 6th Floor

Stamford, CT 06927


 

















 


EXHIBIT A



FORM OF ASSIGNMENT OF TRANSFERRED RECEIVABLES

IN ADDITIONAL ACCOUNTS


 


(As required by Section 2.6 of
the Agreement)


 


ASSIGNMENT No.        OF TRANSFERRED
RECEIVABLES IN ADDITIONAL ACCOUNTS (this “Assignment”) dated as of
                    ,
by and among RFS HOLDING, L.L.C., a limited liability company organized under
the laws of the State of Delaware, as Seller (“Seller”)
and RFS FUNDING TRUST (“Buyer”),
pursuant to the Agreement referred to below.


 


W I T N E S S E T H :


 


WHEREAS, Seller and Buyer are parties to the Receivables Purchase and
Contribution Agreement, dated as of June 27, 2003 (as it may be amended and
supplemented from time to time the “Agreement”);
and


 


WHEREAS, pursuant to the Agreement, Seller wishes to designate
Additional Accounts to be included as Accounts and to convey the Transferred
Receivables in such Additional Accounts that have been designated “Additional
Accounts” pursuant to the Agreement, whether now existing or hereafter created,
to Buyer (as each such term is defined in the Agreement); and


 


WHEREAS, Buyer is willing to accept such designation and conveyance
subject to the terms and conditions hereof;


 


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.


 


“Addition
Date” means, with respect to the Additional Accounts designated
hereby,
[                    ],
20[      ].


 


“Addition
Cut-Off Date” means, with respect to Additional Accounts designated
hereby, [        ], 20[   ].


 


“Notice
Date” means, with respect to the Additional Accounts designated
hereby,
[                    ],
20[      ].


 


2.             Designation
of Additional Accounts.  The
Accounts listed on Schedule 1 to this
Assignment have been designated “Additional Accounts” pursuant to the
Agreement.  Schedule
1 to this Assignment, as of the Addition Date, shall supplement Schedule 1 to the Agreement as required
by Section 2.1(b) of the
Agreement.


 


A-1

















 


3.             Conveyance of Receivables.  (a) 
Seller does hereby transfer, assign, set over and otherwise convey,
without recourse except as set forth in this Agreement, to Buyer, all its
right, title and interest in, to and under the Receivables in such Additional
Accounts existing at the close of business on the Addition Date and thereafter
created from time to time until the Agreement Termination Date, 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
Insurance Proceeds relating thereto and all proceeds of the foregoing.  The foregoing does not constitute and is not
intended to result in the creation or assumption by Buyer of any obligation of
any Originator, Seller or any other Person in connection with the Accounts or
the Transferred Receivables or under any agreement or instrument relating thereto,
including any obligation to Obligors, merchant banks, Retailers, clearance
systems or insurers.


 


(b)           Seller
agrees to record and file, at its own expense, financing statements (and
continuation statements when applicable) with respect to the Receivables in
Additional Accounts existing on the Addition Date and thereafter created
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection of, the sale
and assignment of its interest in such Receivables to Buyer, and to deliver a
file-stamped copy of each such financing statement or other evidence of such
filing to Buyer within ten (10) days of the Addition Date.  Buyer shall be under no obligation
whatsoever to file such financing or continuation statements or to make any
other filing under the UCC in connection with such sale and assignment.


 


(c)           In
connection with such assignment, Seller further agrees, at its own expense, on
or prior to the date of this Assignment, to indicate and cause Servicer to
indicate in the appropriate computer files that Receivables created in
connection with the Additional Accounts and designated hereby have been
conveyed to Buyer pursuant to the Agreement and this Assignment.


 


(d)           Seller
does hereby grant to Buyer a security interest in all of its right, title and
interest, whether now owned or hereafter acquired, in and to the Receivables in
the Additional Accounts existing on the Addition Date and thereafter created,
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 relating thereto and all proceeds of the
foregoing.  This Assignment constitutes
a security agreement under the UCC.


 


4.             Acceptance by Trustee.  Trustee hereby acknowledges its acceptance in trust of all right,
title and interest to the property, existing on the Addition Date and
thereafter created, conveyed to Buyer pursuant to Section
3(a) of this Assignment. Trustee further acknowledges that, prior to
or simultaneously with the execution and delivery of this Assignment, Seller
delivered to it the Account Schedule described in Section
2 of this Assignment.


 


5.             Representations
and Warranties of Seller.  Seller
hereby represents and warrants to Buyer as of the Addition Date:


 


A-2

















 


(a)           This
Assignment 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 the rights of
creditors of national banking associations and except as such enforceability
may be limited by general principles of equity (whether considered in a suit at
law or in equity);


 


(b)           each
of the Transferred Receivables satisfies the criteria for an Eligible Receivable
as of the Addition Cut-Off Date;


 


(c)           each
Additional Account is, as of the Addition Cut-Off Date, an Eligible Account,


 


(d)           no
selection procedures believed by Seller to be materially adverse  to the interests of Buyer or any of its
creditors were utilized in selection the Additional Accounts from the available
Eligible Accounts;


 


(e)           as
of the Addition Date, Seller is solvent;


 


(f)            the
Account Schedule delivered pursuant to this Assignment, is an accurate and
complete listing in all material respects of all the Accounts as of the related
Addition Cut-Off Date, and the information contained therein with respect to
the identify of such Accounts and the Transferred Receivables existing in such
Accounts, is true and correct in all material respects as of the Addition
Cut-Off Date;


 


(g)           the
Agreement and this Assignment creates a valid and continuing security interest
in the Receivables in the Additional Accounts in and the Related Security and
in Collection with respect thereto and, together with all monies due or to
become due and all amounts received or receivable with respect thereto and
Insurance Proceeds relating thereto and the proceeds thereof in favor of Buyer
and is enforceable against creditors of and purchasers of Seller with respect
to the Receivables and 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 the proceeds thereof, as such enforceability may be limited by applicable
Debtor Relief Laws, now or hereafter in effect, and by general principles of
equity (whether considered in a suit at law or in equity) and (y) upon filing
of the financing statements described herein and, in the case of Transferred
Receivables thereafter created, upon the creation thereof, will be prior to all
other Liens (other than Permitted Encumbrances);


 


(h)           the
Transferred Receivables constitute “accounts” within the meaning of UCC Section
9-102;


 


(i)            immediately
prior to the conveyance of the Receivables pursuant to this Agreement, Seller
owns and has good and marketable title to, or has a valid security interest in,
the Receivables free and clear of any Lien, claim or encumbrance of any Person,
(other than Permitted Encumbrances); and


 


A-3

















 


(j)            subject
to Permitted Encumbrances, other than the transfer and assignment and the
security interest granted to Buyer pursuant to this Agreement, Seller had not
pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Transferred Receivables. 
Seller has not authorized the filing of and is not aware of any
financing statements against Seller that included  a description of collateral covering the Transferred Receivables.


 


6.             Amendment of the Agreement.  The Agreement is hereby amended to provide
that all references therein, to “this Agreement” and “herein” shall be deemed
from and after the Addition Date to be a dual reference to the Agreement as
supplemented by this Assignment.  Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be, and shall remain, in full force and effect in accordance with
its terms.


 


7.             Counterparts. 
This Assignment may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall be an
original, but all of which together shall constitute one and the same instrument.


 


8.             GOVERNING
LAW.  THIS ASSIGNMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.


 


9.             Limitation of Liability of the Trustee.  Notwithstanding anything contained herein to
the contrary, this instrument has been countersigned by Deutsche Bank Trust
Company Delaware, not in its individual capacity but solely in its capacity as
Trustee of Buyer, and in no event shall Deutsche Bank Trust Company Delaware,
in its individual capacity, or any beneficial owner of Buyer have any liability
for the representations, warranties, covenants, agreements or other obligations
of Buyer hereunder, as to all of which recourse shall be had solely to the
assets of Buyer.  For all purposes of
this Agreement, in the performance of any duties or obligations of Buyer
thereunder, the Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Article VIII of the Trust Agreement.


 


A-4

















 


IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Transferred Receivables in Additional Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and year
first above written.


 


	
   

  	
  RFS
  HOLDING, L.L.C.,
  Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RFS
  FUNDING TRUST, Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  GENERAL ELECTRIC CAPITAL

  CORPORATION, as Administrator

  on behalf of the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


A-5

















 


Schedule
I

to Assignment of Transferred Receivables

in Additional Accounts


 


ADDITIONAL ACCOUNTS


 


A-6

















 


EXHIBIT B

to

TRANSFER AGREEMENT


 


FORM OF
REASSIGNMENT OF RECEIVABLES

IN REMOVED ACCOUNTS


 


(As required by Section
2.7 of the Agreement)


 


REASSIGNMENT No.
           OF RECEIVABLES IN
REMOVED ACCOUNTS dated as of
              ,
by and among RFS HOLDING, L.L.C., a limited liability company organized under
the laws of the State of Delaware, as Seller (the “Seller”), and RFS
FUNDING TRUST (the “Buyer”), pursuant to
the Agreement referred to below.


 


WITNESSETH:


 


WHEREAS Seller and Buyer are parties to the Receivables Purchase and
Contribution Agreement, dated as of June 27, 2003 (as it may be amended and
supplemented from time to time the “Agreement”);


 


WHEREAS pursuant to the Agreement, Seller wishes to remove from Buyer
all Transferred Receivables owned by Buyer in certain designated Accounts and
to cause Buyer to reconvey the Transferred Receivables of such Removed
Accounts, whether now existing or hereafter created, from Buyer to Seller; and


 


WHEREAS Buyer is willing to accept such designation and to reconvey the
Transferred Receivables in the Removed Accounts subject to the terms and
conditions hereof;


 


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,
             ,
        .


 


“Removal Notice Date” means, with
respect to the Removed Accounts
                     ,
        .


 


2.             Designation of Removed Accounts.  Schedule 1
to this Reassignment, as of the Removal Date, shall supplement Schedule 1 to the Agreement as required
by Section 2.1(b) of the
Agreement.


 


3.             Conveyance of Transferred Receivables.  (a) Buyer does hereby transfer, assign, set
over and otherwise convey to Seller, without representation, warranty or
recourse, on and after the Removal Date, all right, title and interest of Buyer
in, to and


 


B-1

















 


under the Transferred Receivables existing at the
close of business on the Removal 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.


 


(b)           In connection with such transfer, Buyer agrees to execute
and deliver to Seller on or prior to the date this Reassignment is delivered,
applicable termination statements prepared by Seller with respect to the
Transferred Receivables existing at the close of business on the Removal Date
and thereafter created from time to time in the Removed Accounts reassigned
hereby and the proceeds thereof evidencing the release by Buyer of its interest
in the Transferred Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such jurisdictions as
are necessary to terminate such interest.


 


4.             Representations and Warranties
of Seller.  Seller hereby
represents and warrants to Buyer as of the Removal Date:


 


(a)           Legal Valid and Binding
Obligation.  This
Reassignment Agreement 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);


 


(b)           Early
Amortization Event.  Seller
reasonably believes that (i) the removal of the Transferred Receivables
existing in the Removed Accounts will not, based on the facts known to the
Seller, then or thereafter cause an Early Amortization Event to occur with
respect to any series, (ii) no selection procedure believed by Seller to be
materially adverse to the interests of Buyer or any of its creditors has a been
used in removing Removed Accounts from among any pool of Accounts of a similar
type (it being understood that Seller will not be deemed to have used such an
adverse selection procedure in connection with any Involuntary Removal) as of
the Removal Date and (iii) Accounts (or administratively convenient groups of
Accounts, such as billing cycles) were chosen for removal on a random basis or
another basis that Seller believes is consistent with achieving derecognition
of the Transferred Receivables under GAAP;


 


(c)           List of Removed Accounts.  The list of Removed Accounts attached
hereto, is an accurate and complete listing in all material respects of all the
Accounts as of the Removal Date; and


 


(d)           Receivables Tests.  The Aggregate Outstanding Balance of
Principal Receivables in the Removed Accounts did not exceed the lesser of (i)
the Free Equity Amount over the Minimum Free Equity Amount or (ii) the excess
of the Note Trust Principal Balance over the Required Principal Balance, all
measured as of the end of the most recently ended Monthly Period.


 


B-2

















 


5.             Amendment of the Agreement.  The Agreement is hereby amended to provide
that all references therein to “this Agreement” and “herein” shall be deemed
from and after the Removal Date to be a dual reference to the Agreement as
supplemented by this Reassignment. 
Except as expressly amended hereby, all of the representations,
warranties, terms and covenants and conditions of the Agreement shall remain
unamended and shall continue to be and shall remain in full force and effect in
accordance with its terms.


 


6.             Counterparts.  This Reassignment may be executed in two or more
counterparts, and by different parties on separate counterparts), each of which
shall be an original, but all of which shall constitute one and the same
instrument.


 


7.             GOVERNING LAW. THIS
REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.


 


B-3

















 


IN WITNESS WHEREOF, the undersigned have caused this Reassignment Of
Receivables in Removed Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.


 


	
   

  	
  RFS
  HOLDING, L.L.C.,
  Seller

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RFS
  FUNDING TRUST,
  Buyer

  
	
   

  	
   

  
	
   

  	
  By:  GENERAL ELECTRIC CAPITAL

  CORPORATION, not in its individual

  capacity but solely as Administrator on

  behalf of the Buyer

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-4

















 


Schedule 1

to Reassignment Agreement


 


REMOVED ACCOUNTS


 


B-5

















 


EXHIBIT C


 


FORM OF OPINION OF COUNSEL WITH RESPECT

TO AMENDMENTS


 


(Provisions to be included in

Opinion of Counsel to be delivered pursuant

to Section 7.13(c)(i)


 


The opinions set forth below may be subject to all the qualifications,
assumptions, limitations and exceptions taken or made in the Opinions Of
Counsel delivered on the Closing Date.


 


(i)            The amendment to this Agreement attached hereto as
Schedule 1 (the “Amendment”), has been duly
authorized, executed and delivered by Seller and constitutes the legal, valid
and binding agreement of Seller enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws from time to time in
effect affecting creditors’ rights generally or the rights of creditors of
national banking associations.  The
enforceability of the obligations of Seller is also subject to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law)


 


(ii)           The Amendment has been entered into in accordance with the
terms and provisions of Section 7.2 of
this Agreement.


 

















 


EXHIBIT D


 


FORM OF OPINION OF COUNSEL WITH RESPECT

TO ADDITION OF ADDITIONAL ACCOUNTS


 


(Provisions to be included in

Opinion of Counsel to be

delivered pursuant to

Section 7.13(c)(ii))


 


The opinions set forth below may be subject to appropriate qualifications,
assumptions, limitations and exceptions.


 


1.             The provisions of
the Receivables Purchase and Contribution Agreement are effective under the UCC
to create in favor of Buyer a valid security interest in Seller’s rights in the
Transferred Receivables in such Additional Accounts and the identifiable
proceeds thereof (the “Specified Assets”).


 


2.             The security
interest in the Specified Assets created by the Receivables Purchase and
Contribution Agreement will be perfected by the filing of the Financing Statements
as described and defined in such opinion. 
Based solely upon our review of the UCC Searches as described and
defined in such opinion, such perfected security interest in the Specified
Assets is prior to any other security interest granted by Seller that is
perfected solely by filing of Financing Statements in the Search Offices as
described and defined in such opinion that covers the Specified Assets.


 

















 


EXHIBIT E


 


PROVISIONS TO BE INCLUDED IN

ANNUAL OPINION OF COUNSEL


 


(To be delivered pursuant to Section 7.13(c)(iii))


 


The opinion set forth below may be subject to certain qualification,
assumptions, limitations and exceptions taken or made in the opinion of counsel
to otherwise indicated, all capitalized terms used herein shall have the meanings
ascribed to them in the Receivables Purchase and Contribution Agreement.


 


Assuming that all relevant conditions specified in the Prior Opinion as
described and defined in such opinion addressing the security interest of
Seller remain with respect to the Transferred Receivables in the Accounts and
the proceeds thereof (the “Specified Assets”)
and the manner in which it is held still exists and that no circumstance has
occurred that would render the facts upon which the Prior Opinion relied
incorrect, we are of the opinion that no further actions are necessary on the
date hereof to perfect or continue the perfection status of the security
interest of Seller in the Specified Assets.