ASSIGNMENT NO. 5 OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.09 of the Pooling and Servicing Agreement)
ASSIGNMENT NO. 5 OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated as of
August 8, 2000 (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, August 8, 2000.
"Addition Cut-Off Date" shall mean, with respect to the Additional
Accounts designated by this Assignment, the close of business on July 24, 2000.
2. Designation of Additional Accounts. On or before the date hereof,
the Transferors will deliver to the Trustee four computer files, microfiche
lists or printed lists containing a true and complete schedule identifying all
Additional Accounts designated hereby by code designations "L" or "M" (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 existing on the Addition Cut-Off Date and thereafter
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 codes "L" or "M" 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 on related Addition Cut-off Date and thereafter created, 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(a) 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 the Transferors has
occurred and the transfer by the Transferors 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 Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Assistant Treasurer
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION II,
as a Transferor
By /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Treasurer
