EXHIBIT 99.01
ASSIGNMENT NO. 6 OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.09 of the Pooling and Servicing Agreement)
ASSIGNMENT NO. 6 OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated
as of March 2, 2001 (this "Assignment"), by and among (i) AMERICAN EXPRESS
CENTURION BANK, a Utah chartered, FDIC insured industrial loan company, and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION II, a Delaware corporation,
as transferors (together, the "Transferors"), and (ii) THE BANK OF NEW YORK, a
New York banking corporation not in its individual capacity but solely as
trustee (the "Trustee"), pursuant to the Agreement referred to below.
WITNESSETH
WHEREAS the Transferors and the Trustee and American Express
Travel Related Services Company, Inc., as the Servicer (the "Servicer"), are
parties to the Pooling and Servicing Agreement dated as of May 16, 1996 (as
amended and supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Transferors wish to
designate Additional Accounts to be included as Accounts and to convey the
Receivables of such Additional Accounts, whether now existing or hereafter
created, to the Trust as part of the corpus of the Trust (as each such term is
defined in the Agreement); and
WHEREAS the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Transferors and the Trustee hereby agree
as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined herein.
"Additional Accounts" has the meaning set forth in Section 2.
"Addition Date" shall mean, with respect to the Additional
Accounts designated hereby, March 2, 2001.
"Addition Cut-Off Date" shall mean, with respect to the
Additional Accounts designated by this Assignment, the close of business on
February 24, 2001.
2. Designation of Additional Accounts. On or before the date
hereof, the Transferors will deliver to the Trustee computer files, microfiche
lists or printed lists containing a true and complete schedule identifying all
Additional Accounts designated hereby by code designation "N" (the "Additional
Accounts") and specifying for each Additional Account its account number and the
aggregate amount of Receivables outstanding in such Additional Account on the
Addition Cut-Off Date, which computer files or lists shall be Schedule 1 hereto
and shall supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Transferors do hereby
transfer, assign, set over, sell and otherwise convey, without recourse except
as set forth in the Agreement, to the Trustee, on behalf of the Trust, for the
benefit of the Certificateholders, all their respective right, title and
interest in, to and under the Receivables of such Additional Accounts existing
at the close of business on the Addition Cut-Off Date and thereafter created
from time to time until the termination of the Trust, all monies due or to
become due and all amounts received with respect thereto and all Collections
(including Recoveries) and proceeds (including Insurance Proceeds and "proceeds"
as defined in the UCC) thereof. The foregoing does not constitute and is not
intended to result in the creation or assumption by the Trust, the Trustee, any
Investor Certificateholder or any Series Enhancer of any obligation of the
Servicer, the Transferors or any other Person in connection with the Accounts,
the Receivables or under any agreement or instrument relating thereto.
(b) The Transferors agree to record and file, at their own
expense, financing statements (and continuation statements when applicable) with
respect to the Receivables now existing and hereafter created in Additional
Accounts, 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 their interest in such Receivables to the Trust, and to
deliver a file-stamped copy of each such financing statement or other evidence
of such filing to the Trustee on or prior to the Addition Date. The Trustee
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 sale, the Transferors further
agree, at their own expense, on or prior to the date of this Assignment, to
indicate in the appropriate computer files that Receivables created in
connection with the Additional Accounts designated hereby have been conveyed to
the Trust pursuant to the Agreement and this Assignment for the benefit of the
Certificateholders by including in the securitization field of such computer
files the code "N" for each such Additional Account.
(d) The Transferors do hereby grant to the Trustee a security
interest in all of their right, title and interest, whether now owned or
hereafter acquired, in and to the Receivables existing in each of the Additional
Accounts at the close of business on the Addition Cut-Off Date and thereafter
created from time to time until the termination of the Trust, all monies due or
to become due and all amounts received with respect thereto and all Collections
(including Recoveries) and proceeds (including Insurance Proceeds and "proceeds"
as defined in the UCC) thereof. This Assignment constitutes a security agreement
under the UCC.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest to the
property, now existing and hereafter created, conveyed to the Trust pursuant to
Section 3 of this Assignment, and declares that it shall maintain such right,
title and interest, upon the trust set forth in the Agreement for the benefit of
all Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Assignment, the
Transferors delivered to the Trustee the computer files or microfiche lists
described in Section 2 of this Assignment.
5. Representations and Warranties of the Transferors. Each
Transferor hereby severally represents and warrants to the Trustee, on behalf of
the Trust, as of the date of this Assignment and as of the Addition Date that:
(a) Legal Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation of such
Transferor enforceable against such Transferor 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) Eligibility of Accounts. As of the Addition
Selection Date, each Additional Account designated hereby is an
Eligible Account and each Receivable in each Additional Account
designated hereby is an Eligible Receivable;
(c) Insolvency. As of the Addition Cut-Off Date and
the Addition Date, no Insolvency Event with respect to such Transferor
has occurred and the transfer by such Transferor of Receivables arising
in the Additional Accounts to the Trust has not been made in
contemplation of the occurrence thereof;
(d) Pay Out Event. Such Transferor reasonably
believes that (A) the addition of the Receivables arising in the
Additional Accounts will not, based on the facts known to such
Transferor, then or thereafter cause a Pay Out Event to occur with
respect to any Series and (B) no selection procedure was utilized by
such Transferor which would result in the selection of Additional
Accounts (from among the available Eligible Accounts owned by such
Transferor) that would be materially adverse to the interests of the
Investor Certificateholders of any Series as of the Addition Date;
(e) Security Interest. This Assignment constitutes a
valid sale, transfer and assignment to the Trust of all right, title
and interest, whether now owned or hereafter acquired, of such
Transferor in the Receivables existing in each of the Additional
Accounts at the close of business on the Addition Cut-Off Date or
thereafter created, all monies due or to become due and all amounts
received with respect thereto and, to the extent set forth in UCC 9-306
in effect in the relevant state, the "proceeds" thereof, or, if this
Assignment does not constitute a sale of such property, it constitutes
a grant of a "security interest" in such property to the Trust, which,
in the case of existing Receivables and the proceeds thereof, is
enforceable upon execution and delivery of this Assignment, and which
will be enforceable with respect to such Receivables hereafter created
and the proceeds thereof upon such creation. Upon the filing of the
financing statements described in Section 3 of this Assignment and, in
the case of the Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Trust shall have a first priority
perfected security or ownership interest in such property, except for
(i) Liens permitted under clause (d) of the definition of "Eligible
Receivable" in the Agreement, (ii) the interests of the holders of the
Transferor Certificates under the Agreement and (iii) the right to
receive interest and investment earnings (net of losses and investment
expenses) in respect of the Collection Account as provided in the
Agreement or any Series Account if so provided in the applicable
Supplement;
(f) No Conflict. The execution and delivery by such
Transferor of this Assignment, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms hereof
applicable to such Transferor, will not conflict with or violate any
Requirements of Law applicable to such Transferor or conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which such Transferor is a party or by
which it or its properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of such Transferor,
threatened against such Transferor before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) asserting the invalidity of this Assignment, (ii) seeking to
prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking any
determination or ruling that, in the reasonable judgment of such
Transferor, would materially and adversely affect the performance by
such Transferor of its obligations under this Assignment or (iv)
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Assignment;
(h) All Consents. All authorizations, consents,
orders or approvals of any court or other governmental authority
required to be obtained by such Transferor in connection with the
execution and delivery of this Assignment by such Transferor and the
performance of the transactions contemplated by this Assignment by such
Transferor, have been obtained; and
(i) List of Accounts. As of the Addition Date, to the
best knowledge of the Transferors, the computer files or microfiche
lists of Additional Accounts complies with the requirements of Section
2 hereof.
6. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
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 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.
IN WITNESS WHEREOF, each Transferor and the Trustee have
caused this Assignment to be duly executed by their respective officers as of
the day and year first above written.
AMERICAN EXPRESS CENTURION BANK,
as a Transferor
By / s / Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION II,
as a Transferor
By / s / Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By / s / Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
