Exhibit 4.1
EXECUTION COPY
SECOND AMENDMENT TO
POOLING AND SERVICING AGREEMENT
This SECOND AMENDMENT TO THE POOLING AND SERVICING AGREEMENT,
dated as of September 21, 2004 (this "Amendment"), is among American Express
Receivables Financing Corporation II ("RFC II"), American Express Receivables
Financing Corporation III LLC ("RFC III"), American Express Receivables
Financing Corporation IV LLC ("RFC IV"), American Express Travel Related
Services Company, Inc. (the "Servicer") and The Bank of New York, as trustee
(the "Trustee"). This Amendment amends the Pooling and Servicing Agreement,
dated as of May 16, 1996, as amended and restated as of April 16, 2004, as
amended as of June 30, 2004 (the "Pooling and Servicing Agreement" and, together
with this Amendment, the "Amended Pooling and Servicing Agreement").
RECITALS
1. Pursuant to Section 13.01(a) of the Pooling and Servicing
Agreement, each of RFC II, RFC III and RFC IV has delivered to the Trustee an
Officer's Certificate, dated the date of this Amendment, stating that RFC II,
RFC III and RFC IV, respectively, reasonably believes that this Amendment will
not have an Adverse Effect.
2. RFC II, RFC III, RFC IV and the Servicer have satisfied all
conditions precedent contained in the Pooling and Servicing Agreement to
entering into this Amendment and this Amendment is authorized and permitted
under the Pooling and Servicing Agreement. All capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement.
3. Now, therefore, in consideration of the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each party hereto agrees as follows:
AMENDMENTS
SECTION 1. Amendment to Section 1.01.
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(a) Each of the definitions of "Certificateholder" and
"Original Transferor Certificate" in Section 1.01 of the Pooling and Servicing
Agreement shall be deleted in its entirety and inserted in its place shall be
the following:
"Certificateholder" or "Holder" shall mean an Investor
Certificateholder or, if used with respect to the Transferors'
Interest, a Person in whose name a Transferor Certificate is
registered or a Person in whose name ownership of an
uncertificated interest in the Transferors' Interest is
registered in the books and records of the Trust maintained by
the Trustee.
"Original Transferor Certificate" shall mean, if the
Transferors elect (i) to evidence their interests in the
Transferors' Interest in certificated form pursuant to Section
6.01, the certificate executed by the Transferors and
authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A, as the same may be modified in
accordance with Exhibit A, or (ii) to have their interests in
the Transferors' Interest be uncertificated pursuant to
Section 6.01, such uncertificated interests.
(b) The definition of "Holders of the Transferor Certificates"
shall be added to Section 1.01 of the Pooling and Servicing Agreement and it
shall read as follows:
"Holders of the Transferor Certificates" or "holders of the
Transferor Certificates" shall mean the Holders of the
Transferor Certificates or the Holders of any uncertificated
interests in the Transferors' Interest.
(c) The definition of "Second Amendment Effective Date" shall
be added to Section 1.01 of the Pooling and Servicing Agreement and it shall
read as follows:
"Second Amendment Effective Date" shall mean September 21,
2004.
SECTION 2. Amendments of Section 2.09. Subsection 2.09(g) of
the Pooling and Servicing Agreement is hereby amended by deleting the first
sentence thereof in its entirety and inserting in its place the following:
A Transferor may designate Affiliates of such Transferor to be
included as Transferors ("Additional Transferors") under this
Agreement in an amendment hereto pursuant to subsection
13.01(a) and, in connection with such designation, such
Transferor shall (i) if the Original Transferor Certificate is
certificated, surrender the Original Transferor Certificate to
the Trustee in exchange for a newly issued Original Transferor
Certificate modified to reflect such Additional Transferor's
interest in the Transferors' Interest or (ii) if the Original
Transferor Certificate is uncertificated, direct the Trustee
to register in the books and records of the Trust such
Additional Transferor's interest in the Transferors' Interest;
provided, however, that prior to any such designation of an
Additional Transferor, the conditions set forth in clauses
(iv) and (vi) of subsection 6.03(b) shall have been satisfied
with respect thereto.
SECTION 3. Amendment of Section 3.07. Section 3.07 of the
Pooling and Servicing Agreement is hereby amended by deleting the second
sentence thereof in its entirety and inserting in its place the following:
Each of the Transferors, by entering into this Agreement, each
of the Holders of the Transferor Certificates, by acquisition
of its interest in the Transferors' Interest, and each
Certificateholder, by the acceptance of any such Certificate
(and each Certificate Owner, by its acceptance of an interest
in the applicable Certificate), agree to treat such Investor
Certificates for federal, state and local income and franchise
tax purposes as indebtedness.
SECTION 4. Amendment of Section 4.01. Section 4.01 of the
Pooling and Servicing Agreement is hereby amended by deleting the second
sentence thereof in its entirety and inserting in its place the following:
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The Transferor Certificates or, as the case may be, the
uncertificated interests in the Transferors' Interest shall
represent the ownership interest in the remainder of the Trust
Assets not allocated pursuant to this Agreement or any
Supplement to the Certificateholders' Interest, including the
right to receive Collections with respect to the Receivables
and other amounts at the times and in the amounts specified in
any Supplement to be paid to the Transferors on behalf of all
holders of the Transferor Certificates (the "Transferors'
Interest"); provided, however, that if the Transferors elect
to have their interests in the Transferors' Interest be
uncertificated as provided in Section 6.01 hereof, then such
uncertificated interests shall represent the Transferors'
Interest; provided further, however, that the Transferor
Certificates or, as the case may be, the uncertificated
interests in the Transferors' Interest shall not represent any
interest in the Collection Account, any Series Account or any
Series Enhancement, except as specifically provided in this
Agreement or any Supplement.
SECTION 5. Amendment of Section 6.01. Section 6.01 of the
Pooling and Servicing Agreement is hereby amended by deleting the third, fourth
and fifth sentences thereof in their entirety and inserting in their place the
following:
The Transferors may elect at any time, by written notice to
the Trustee, to have their interests in the Transferors'
Interest be (i) uncertificated interests or (ii) evidenced by
Transferor Certificates in registered form, substantially in
the form of Exhibit A (which shall, upon issue, be executed
and delivered by the Transferors to the Trustee for
authentication and redelivery as provided in Section 6.02). If
the Transferors elect to have their interests in the
Transferors' Interest be uncertificated, they shall deliver to
the Trustee for cancellation any Transferor Certificates
previously issued and the Trustee shall register in the books
and records of the Trust such uncertificated interests of the
Transferors in the Transferors' Interest. If specified in any
Supplement, the Investor Certificates of any Series or Class
shall be issued upon initial issuance as one or more
certificates evidencing the aggregate original principal
amount of such Series or Class as described in Section 6.10.
The Original Transferor Certificate, if certificated, shall be
a single certificate and shall initially represent the entire
Transferors' Interest. As of the Second Amendment Effective
Date, the Transferors' interests in the Transferors' Interest
shall be evidenced in uncertificated form, and the Trustee
shall register in the books and records of the Trust such
uncertificated interests of the Transferors in the
Transferors' Interest.
SECTION 6. Amendment of Section 6.03. Subsection 6.03(b) of
the Pooling and Servicing Agreement is hereby amended by deleting subsection
6.03(b) in its entirety and inserting in its place the following:
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(b) On or before the Series Issuance Date relating to any new
Series, the parties hereto will execute and deliver a
Supplement which will specify the Principal Terms of such new
Series. The Trustee shall execute the Supplement and the
Transferors shall execute the Investor Certificates of such
Series and deliver such Investor Certificates to the Trustee
for authentication. In connection with the issuance of a new
Series of Investor Certificates, the designation of an
Additional Transferor pursuant to Section 2.09(g) or at any
other time, each Transferor may surrender its Transferor
Certificate to the Trustee, if applicable, in exchange for a
newly issued Transferor Certificate and a new certificate (a
"Supplemental Certificate"), the terms of which shall be
defined in a supplement (a "Transferor Certificate
Supplement") to this Agreement (which Transferor Certificate
Supplement shall be subject to Section 13.01 to the extent
that it amends any of the terms of this Agreement) to be
delivered to or upon the order of such Transferor; provided,
however, that if the Holders of the Transferor Certificates
have elected to have their interests in the Transferors'
Interest be uncertificated, then such uncertificated interests
shall represent the Transferors' Interest before and
immediately after the designation of such Additional
Transferor pursuant to Section 2.09(g). The issuance of any
such Investor Certificates or Supplemental Certificate shall
be subject to satisfaction of the following conditions:
(i) on or before the fifth day immediately preceding
the Series Issuance Date, the surrender and exchange of the
Transferor Certificates or the exchange of the uncertificated
interests in the Transferors' Interest, as the case may be,
such Transferor shall have given the Trustee, the Servicer and
each Rating Agency notice (unless such notice requirement is
otherwise waived) of such issuance and the Series Issuance
Date, of such surrender and exchange of the Transferor
Certificates or of such exchange of the uncertificated
interests in the Transferors' Interest, as the case may be;
(ii) such Transferor shall have delivered to the
Trustee the related Supplement or Transferor Certificate
Supplement, as applicable, in form satisfactory to the
Trustee, executed by each party hereto (other than the Trustee
and the Holder of the Supplemental Certificate, if any);
(iii) such Transferor shall have delivered to the
Trustee any related Enhancement Agreement executed by each of
the parties thereto, other than the Trustee;
(iv) the Rating Agency Condition shall have been
satisfied with respect to such issuance, such surrender and
exchange of the Transferor Certificates or such exchange of
the uncertificated interests in the Transferors' Interest, as
the case may be;
(v) such issuance, such surrender and exchange or
such exchange, as the case may be, will not result in any
Adverse Effect and such Transferor shall have delivered to the
Trustee an Officer's Certificate of such Transferor, dated the
Series Issuance Date, the date of such surrender and exchange
or the date of such exchange, as the case may be, to the
effect that such Transferor reasonably believes that such
issuance, such surrender and exchange or such exchange, as the
case may be, will not, based on the facts known to such
officer at the time of such certification, have an Adverse
Effect;
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(vi) the Transferors shall have delivered to the
Trustee (with a copy to each Rating Agency) a Tax Opinion,
dated the Series Issuance Date or the date of such surrender
and exchange or such exchange, as the case may be, with
respect to such issuance, such surrender and exchange or such
exchange, respectively, and, in connection with any such
exchange, after giving effect to such exchange, the
Transferors or other Holders of the Original Transferor
Certificate shall have a remaining interest in the Trust of
not less than, in the aggregate, 2% of the total amount of
Principal Receivables and funds on deposit in the Special
Funding Account and the Principal Funding Account; and
(vii) the aggregate amount of Principal Receivables
plus the principal amount of any Participation Interest
theretofore conveyed to the Trust as of the Series Issuance
Date, the date of such surrender and exchange or the date of
such exchange, as the case may be, shall be greater than the
Required Minimum Principal Balance as of the Series Issuance
Date or the date of such surrender and exchange, as the case
may be, and after giving effect to such issuance, such
surrender and exchange or such exchange, respectively.
Any Supplemental Certificate (or uncertificated interest) held
by any Person, and any Investor Certificate held by any
Transferor at any time after the date of its initial issuance,
may be transferred or exchanged only upon the delivery to the
Trustee of a Tax Opinion dated as of the date of such transfer
or exchange, as the case may be, with respect to such transfer
or exchange.
SECTION 7. Amendment of Section 7.05. Section 7.05 of the
Pooling and Servicing Agreement is hereby amended by deleting Section 7.05 in
its entirety and inserting in its place the following:
Notwithstanding the provisions of Section 7.02, each
Transferor may assign, convey or transfer all of its right,
title and interest in, to and under the Receivables, the
Accounts and the Participation Interests in which it has an
interest and/or its interest in the Transferors' Interest
(collectively, the "Assigned Assets"), together with all
servicing functions and other obligations, if any, under this
Agreement or relating to the transactions contemplated hereby
(collectively, the "Assumed Obligations"), to another entity
(the "Assuming Entity") which may be an entity that is not
affiliated with such Transferor, and such Transferor may
assign, convey and transfer the Assigned Assets and the
Assumed Obligations to the Assuming Entity, without the
consent or approval of the holders of any Certificates, upon
satisfaction of the following conditions:
(a) the Assuming Entity, such Transferor and the
Trustee shall have entered into a supplement to this Agreement
or an assumption agreement (in form and substance reasonably
satisfactory to the Trustee) (either, the "Assumption
Agreement") providing for the Assuming Entity to assume the
Assumed Obligations, including the obligation under this
Agreement to transfer the Receivables arising under the
Accounts and the Receivables arising under any Additional
Accounts to the Trust, and such Transferor shall have
delivered to the Trustee an Officer's Certificate of such
Transferor and an Opinion of Counsel each stating that such
transfer and assumption comply with this Section 7.05, that
such Assumption Agreement is a valid and binding obligation of
such Assuming Entity enforceable against such Assuming Entity
in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship 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), and that all conditions
precedent herein provided for relating to such transaction
have been complied with;
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(b) all UCC filings required to perfect the interest
of the Trustee, on behalf of the Trust, in the Receivables to
be conveyed by the Assuming Entity shall have been duly made
and copies thereof shall have been delivered to the Trustee;
(c)(i) if the Assuming Entity shall not be eligible
to be a debtor under the Bankruptcy Code, such Transferor
shall have delivered notice of such transfer and assumption to
each Rating Agency or (ii) if the Assuming Entity shall be
eligible to be a debtor in a case under the Bankruptcy Code,
such Transferor shall have delivered copies of each such
written notice to the Servicer and the Trustee and the Rating
Agency Condition shall have been satisfied;
(d) the Trustee shall have received one or more
Opinions of Counsel to the effect that (i) the transfer of
such Receivables by the Assuming Entity shall constitute
either a sale of, or the granting of a security interest in,
such Receivables by the Assuming Entity to the Trust, (ii) the
condition specified in paragraph (b) shall have been
satisfied, and (iii) if the Assuming Entity shall be subject
to the FDIA, the interest of the Trust in such Receivables
should not be subject to avoidance by the FDIC if the FDIC
were to become the receiver or conservator of the Assuming
Entity; and
(e) the Trustee shall have received a Tax Opinion.
Upon such transfer to and assumption by the Assuming Entity,
such Transferor shall surrender the Transferor Certificate, if
applicable, evidencing its interest in the Trust to the
Transfer Agent and Registrar for registration of transfer and
the Transfer Agent and Registrar shall issue a new Transferor
Certificate, if applicable, in the name of the Assuming Entity
(or, if applicable, register such Assuming Entity's
uncertificated interest in the Transferors' Interest).
Notwithstanding such assumption, such Transferor shall
continue to be liable for all representations and warranties
and covenants made by it and all obligations performed or to
be performed by it in its capacity as Transferor prior to such
transfer.
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SECTION 8. Amendment of Section 12.03. Section 12.03 of the
Pooling and Servicing Agreement is hereby amended by deleting the first sentence
thereof in its entirety and inserting in its place the following:
Upon the termination of the Trust pursuant to Section 12.01
and the surrender of the Transferor Certificates, if
applicable, the Trustee shall sell, assign and convey to the
Holders of the Transferor Certificates or any of their
designees, without recourse, representation or warranty, all
right, title and interest of the Trustee in the Receivables,
whether then existing or thereafter created, all monies due or
to become due and all amounts received with respect thereto
(including all monies then held in the Collection Account or
any Series Account) and all proceeds thereof, except for
amounts held by the Trustee pursuant to subsection 12.02(b).
SECTION 9. Miscellaneous. The amendments provided for by this
Amendment shall become effective as of the Second Amendment Effective Date upon
receipt by the Trustee of the following:
(a) Notification in writing from each of Moody's and Standard
& Poor's to the effect that this Amendment will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is a
Rating Agency.
(b) An Officer's Certificate of each Transferor to the effect
that such Transferor reasonably believes that this Amendment will not have an
Adverse Effect.
(c) Counterparts of this Amendment, duly executed by the
parties hereto.
SECTION 10. Pooling and Servicing Agreement in Full Force and
Effect as Amended. The Pooling and Servicing Agreement is hereby amended by
providing that all references therein to the "Pooling and Servicing Agreement,"
"this Agreement," "hereby," "hereof" and "herein" shall be deemed from and after
the effective date of this Amendment to be a reference to the Amended Pooling
and Servicing Agreement. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Pooling and
Servicing Agreement shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with their terms and except as
expressly provided herein, this Amendment shall not constitute or be deemed to
constitute a waiver of compliance with or consent to non-compliance with any
term or provision of the Pooling and Servicing Agreement.
SECTION 11. Counterparts. This Amendment 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.
SECTION 12. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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SECTION 13. Limitation of Trustee. The Trustee makes no
representations as to the validity or sufficiency of this Amendment. The
recitals and statements herein are deemed to be those of RFC II, RFC III, RFC IV
and the Servicer, and not of the Trustee.
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IN WITNESS WHEREOF, RFC II, RFC III, RFC IV, the Servicer and
the Trustee have caused this Amendment to be duly executed and delivered by
their respective duly authorized officers as of the day and year first written
above.
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION II,
as a Transferor
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION III LLC,
as a Transferor
By: /s/ L. Xxxxx Xxxxx
-------------------------------------------
Name: L. Xxxxx Xxxxx
Title: President
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION IV LLC,
as a Transferor
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
as Servicer
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
[Signature Page to Second Amendment to Amended and Restated PSA]
