EXHIBIT 4.4
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AMERICAN EXPRESS ISSUANCE TRUST
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
between
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V LLC,
as Beneficiary and Transferor,
and
WILMINGTON TRUST COMPANY
Dated as of March [__], 2006
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................................1
Section 1.02. Other Definitional Provisions..............................................................5
ARTICLE II
ORGANIZATION
Section 2.01. Name.......................................................................................6
Section 2.02. Office.....................................................................................6
Section 2.03. Purposes and Powers; Trust To Operate as a Single Purpose Entity...........................6
Section 2.04. Appointment of Owner Trustee...............................................................9
Section 2.05. Initial Capital Contribution of Trust Estate...............................................9
Section 2.06. Declaration of Trust.......................................................................9
Section 2.07. Title to Trust Estate......................................................................9
Section 2.08. Situs of Trust.............................................................................9
Section 2.09. Nature of Interest in the Trust Estate....................................................10
Section 2.10. Tax Matters...............................................................................10
Section 2.11. Fiscal Year...............................................................................10
Section 2.12. Closing...................................................................................10
Section 2.13. Books and Records.........................................................................10
Section 2.14. Limitation on Liability of Transferor and Others..........................................10
Section 2.15. Representations and Warranties of each Beneficiary........................................10
ARTICLE III
BENEFICIAL INTEREST
Section 3.01. Initial Ownership.........................................................................11
Section 3.02. Restrictions on Transfer..................................................................11
ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds.....................................................................12
Section 4.02. Payments from Trust Estate Only...........................................................12
Section 4.03. Method of Payment.........................................................................12
Section 4.04. Transferor Interest; Transferor Certificates..............................................12
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE V
ACTIONS BY OWNER TRUSTEE
Section 5.01. Prior Notice to Beneficiary and Transferor with Respect to Certain Matters................13
Section 5.02. Restrictions on Power.....................................................................14
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. Action Upon Instructions..................................................................14
Section 6.02. No Duty to Act Under Certain Circumstances................................................15
Section 6.03. No Duties Except Under Specified Agreements or Instructions...............................15
Section 6.04. Trust Operation...........................................................................16
Section 6.05. Execution of Documents....................................................................17
ARTICLE VII
CONCERNING THE TRUSTEE BANK
Section 7.01. Acceptance of Trusts and Duties...........................................................17
Section 7.02. Furnishing of Documents...................................................................18
Section 7.03. Representations and Warranties............................................................18
Section 7.04. Reliance; Advice of Counsel...............................................................19
Section 7.05. Not Acting in Individual Capacity.........................................................19
Section 7.06. No Representations and Warranties as to the Trust Estate..................................20
Section 7.07. Signature of Returns......................................................................20
Section 7.08. Trustee Bank May Own Notes................................................................20
ARTICLE VIII
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 8.01. Trustee Bank's Fees and Expenses..........................................................20
Section 8.02. Indemnification...........................................................................20
Section 8.03. Payments to the Owner Trustee.............................................................21
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement............................................................21
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE X
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND SEPARATE OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee................................................21
Section 10.02. Resignation or Removal of Owner Trustee...................................................22
Section 10.03. Successor Owner Trustee...................................................................23
Section 10.04. Merger or Consolidation of Owner Trustee..................................................23
Section 10.05. Appointment of Co-Trustee or Separate Owner Trustee.......................................23
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments................................................................25
Section 11.02. No Legal Title to Trust Estate in Beneficiary.............................................26
Section 11.03. Limitations on Rights of Others...........................................................26
Section 11.04. Notices...................................................................................26
Section 11.05. Severability..............................................................................26
Section 11.06. Separate Counterparts.....................................................................27
Section 11.07. Successors and Assigns....................................................................27
Section 11.08. Nonpetition Covenants.....................................................................27
Section 11.09. No Recourse...............................................................................27
Section 11.10. Headings..................................................................................27
Section 11.11. GOVERNING LAW.............................................................................27
Section 11.12. Acceptance of Terms of Agreement..........................................................28
Section 11.13. Integration of Documents..................................................................28
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of the Parties; Reasonableness ....................................................28
Section 12.02. Information to Be Provided by the Trustee Bank ...........................................28
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This AMERICAN EXPRESS ISSUANCE TRUST AMENDED AND RESTATED
TRUST AGREEMENT between AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V
LLC, a Delaware limited liability company, as Beneficiary and as Transferor, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, is made and entered
into as of March [__], 2006, and acknowledged and accepted by the AMERICAN
EXPRESS ISSUANCE TRUST.
WHEREAS, American Express Receivables Financing Corporation V
LLC and the Trustee Bank have heretofore created a statutory trust pursuant to
the Delaware Statutory Trust Act (as hereinafter defined) by filing the
Certificate of Trust (as hereinafter defined) with the Secretary of State (as
hereinafter defined) on May 18, 2005, and entered into a Trust Agreement, dated
as of May 18, 2005 (the "Original Trust Agreement"); and
WHEREAS, the parties hereto desire to continue the Trust as a
statutory trust under the Delaware Statutory Trust Act and to amend and restate
the Original Trust Agreement of the Trust in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. For purposes of this Agreement, the
following terms have the following meanings:
"Additional Transferor" has the meaning specified in the
Transfer and Servicing Agreement.
"Administrator" means TRS, in its capacity as Administrator
pursuant to the Transfer and Servicing Agreement, and any permitted successors
or assigns.
"Adverse Effect" has the meaning specified in the Indenture.
"Affiliate" has the meaning specified in the Indenture.
"Agreement" means this American Express Issuance Trust Amended
and Restated Trust Agreement, as the same may be amended, modified or
supplemented from time to time.
"Beneficial Interest" means the undivided beneficial interest
of the Beneficiary in the Trust.
"Beneficiary" means (a) RFC V, as beneficial owner of the
Trust, and (b) each Permitted Affiliate Transferee and other transferee under
Section 3.02. References to "each Beneficiary" shall refer to each entity
mentioned in the preceding sentence, and references to "the Beneficiary" shall
refer to all of such entities.
"Business Day" has the meaning specified in the Indenture.
"Certificate of Trust" means the Certificate of Trust of the
Trust in the form attached hereto as Exhibit A which has been filed for the
Trust pursuant to subsection 3810(a) of the Delaware Statutory Trust Act.
"Class" means, with respect to any Note, the Class specified
in the applicable Indenture Supplement.
"Code" means the Internal Revenue Code of 1986, as it may be
amended from time to time.
"Collateral Certificate" has the meaning specified in the
Transfer and Servicing Agreement.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" means, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration; or such other address as the Owner
Trustee may designate by notice to the Beneficiary and the Transferor, or the
principal corporate trust office of any successor Owner Trustee (the address of
which the successor Owner Trustee will notify the Beneficiary and the
Transferor).
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. xx.xx. 3801, et seq., as amended from time to
time, and any successor statute thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expenses" has the meaning specified in Section 8.02.
"GAAP" has the meaning specified in the Indenture.
"Governmental Authority" means the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indemnified Parties" has the meaning specified in Section
8.02.
"Indenture" means the Amended and Restated Indenture, dated as
of March [__], 2006, between the Trust and the Indenture Trustee, which by its
terms is identified as being the Indenture referred to herein, as the same may
be amended, restated, supplemented or otherwise modified from time to time.
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"Indenture Supplement" has the meaning specified in the
Indenture.
"Indenture Trustee" means The Bank of New York, not in its
individual capacity but solely as Indenture Trustee under the Indenture, and
each successor Indenture Trustee under such Indenture, or such other party
identified as the Indenture Trustee within the Indenture.
"Investor Certificate" has the meaning specified in the
Indenture.
"Issuer Accounts" has the meaning specified in the Transfer
and Servicing Agreement.
"Issuer Tax Opinion" has the meaning specified in the
Indenture.
"Master Trust" has the meaning specified in the Indenture.
"Master Trust Tax Opinion" has the meaning specified in the
Indenture.
"Note" has the meaning specified in the Indenture.
"Noteholder" has the meaning specified in the Indenture.
"Note Rating Agency" has the meaning specified in the
Indenture.
"Outstanding Dollar Principal Amount" has the meaning
specified in the Indenture.
"Owner Trustee" means Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely in its capacity
as owner trustee hereunder, and each successor trustee under Article X, in its
capacity as owner trustee hereunder, and each co-trustee under and to the extent
provided in Section 10.05, in its capacity as owner trustee hereunder.
"Permitted Affiliate Transferee" is defined in Section 3.02.
"Person" has the meaning specified in the Indenture.
"Pooling and Servicing Agreement" has the meaning specified in
the Indenture.
"Receivables" has the meaning specified in the Transfer and
Servicing Agreement.
"Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,056, 1,531
(January 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
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"Requirements of Law" means, for 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 (including without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Responsible Officer" means, when used with respect to the
Owner Trustee, any officer within the Corporate Trust Office of the Trustee Bank
(or any successor group of the Trustee Bank), including any Vice President or
any other officer of the Trustee Bank customarily performing functions similar
to those performed by any person who at the time will be an above-designated
officer and who will have direct responsibility for the administration of this
Agreement.
"RFC V" means American Express Receivables Financing
Corporation V LLC, a Delaware limited liability company, and its permitted
successors and assigns.
"Secretary of State" means the Office of the Secretary of
State of the State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Transaction" means any transaction involving a
new issuance of notes pursuant to the Indenture, whether publicly offered or
privately placed, rated or unrated.
"Series" has the meaning specified in the Indenture.
"Series Supplement" has the meaning specified in the
Indenture.
"Servicer" has the meaning specified in the Transfer and
Servicing Agreement.
"Tranche" has the meaning specified in the Indenture.
"Transaction Documents" means the Indenture, any Indenture
Supplement thereto, the Certificate of Trust, this Agreement and the Transfer
and Servicing Agreement and other documents delivered in connection herewith and
therewith.
"Transfer and Servicing Agreement" means the Amended and
Restated Transfer and Servicing Agreement, dated as of March [__], 2006, among
the Trust, as Issuer, RFC V, as Transferor, TRS, as Servicer and Administrator,
and The Bank of New York, as Indenture Trustee, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Transferor" means (a) RFC V or its successors under the
Transfer and Servicing Agreement and (b) any Additional Transferor or Additional
Transferors to the extent permitted under the Transfer and Servicing Agreement.
References to "each Transferor" shall refer to each entity mentioned in the
preceding sentence and references to "the Transferor" shall refer to all of such
entities.
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"Transferor Interest" has the meaning specified in the
Transfer and Servicing Agreement.
"TRS" means American Express Travel Related Services Company,
Inc., a New York corporation, and its permitted successors and assigns.
"Trust" means the statutory trust created by this Agreement
and the filing of the Certificate of Trust with the Secretary of State.
"Trust Estate" has the meaning specified in Section 2.06.
"Trustee Bank" means Wilmington Trust Company in its
individual capacity, each bank appointed as successor Owner Trustee under
Article X in its individual capacity and each bank appointed as co-trustee under
and to the extent provided in Section 10.05 in its individual capacity.
"UCC" means the Uniform Commercial Code as in effect in the
State of Delaware and any other applicable jurisdiction.
Section 1.02 Other Definitional Provisions. (a) Capitalized
terms used herein and not otherwise defined have the meanings specified in the
Transfer and Servicing Agreement or, if not defined therein, in the Indenture.
(b) All terms defined in this Agreement will have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, will have the respective meanings
given to them under GAAP. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in this
Agreement or in any such certificate or other document will control.
(d) The words "hereof," "herein," "hereunder," and words of
similar import when used in this Agreement will refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
will mean "including without limitation."
(e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
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ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby is named
"American Express Issuance Trust," under which name the Trust, the Owner
Trustee, the Administrator or the Beneficiary may conduct any activities and
business of the Trust contemplated hereby, execute contracts and other
instruments on behalf of the Trust and xxx and be sued on behalf of the Trust.
Section 2.02. Office. The office of the Trust will be in care
of the Owner Trustee at the Corporate Trust Office or at such other address in
the State of Delaware as the Owner Trustee may designate by written notice to
the Beneficiary and the Transferor.
Section 2.03. Purposes and Powers; Trust To Operate as a
Single Purpose Entity. (a) The purpose of the Trust is to engage solely in a
program of acquiring the Trust Estate and issuing Notes under the Indenture and
related activities. Without limiting the generality of the foregoing, the Trust
may and will have the power and authority to:
(i) acquire and hold the Trust Estate;
(ii) from time to time, grant a security interest in the Trust
Estate, and grant a security interest in accounts established for the
benefit of indebtedness of the Trust under the Indenture;
(iii) from time to time, authorize and approve the issuance
of, and to execute, deliver and issue, Notes pursuant to the Indenture
without limitation as to aggregate amounts and, in connection
therewith, determine the terms and provisions of such Notes and of the
issuance and sale thereof, including the following:
(A) determining the principal amount of the Notes;
(B) determining the maturity date of the Notes;
(C) determining the rate of interest, if any, to be paid on
the Notes;
(D) determining the price or prices at which such Notes will
be sold by the Trust;
(E) determining the provisions, if any, for the redemption or
amortization of such Notes;
(F) determining the form, terms and provisions of the
indentures, fiscal agency agreements or other instruments under which the Notes
may be issued and the banks or trust companies to act as trustees, fiscal agents
and paying agents thereunder,
(G) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes under the
Securities Act, the qualification of indentures under the Trust Indenture Act of
1939, as amended, and the qualification under any other applicable federal,
foreign, state, local or other governmental requirements;
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(H) preparing any prospectus, offering memorandum, private
placement memorandum or other descriptive material relating to the offering or
issuance of the Notes;
(I) listing the Notes on any United States or non-United
States securities exchange;
(J) entering into one or more interest rate, basis, credit
default or currency swaps, caps, collars, guaranteed investment contracts or
other derivative agreements with counterparties to manage interest rate, basis
or currency risk relating to the Notes;
(K) entering into one or more supplemental credit enhancement
agreements or liquidity agreements;
(L) appointing a paying agent or agents for purposes of
payments on the Notes; and
(M) arranging for the underwriting, subscription, purchase or
placement of the Notes and selecting underwriters, managers and purchasers or
agents for that purpose;
(iv) from time to time, receive payments and proceeds with
respect to the Trust Estate and the Indenture and either invest or
distribute those payments and proceeds;
(v) from time to time, make deposits to and withdrawals from
accounts established under the Indenture;
(vi) from time to time, make and receive payments pursuant to
derivative agreements, supplemental credit enhancement agreements and
supplemental liquidity agreements;
(vii) from time to time, make payments on the Notes;
(viii) from time to time, acquire additional collateral to be
included in the Trust Estate;
(ix) from time to time, perform such obligations and exercise
and enforce such rights and pursue such remedies as may be appropriate
by virtue of the Trust being party to any of the agreements
contemplated in clauses (i) through (viii) above;
(x) execute, deliver and perform the Transaction Documents
to which it is to be a party, the Notes and any Transferor
Certificates, and all other documents, certificates and agreements
necessary or incidental in connection therewith (including, without
limitation, the documents listed in subsection 2.03(b));
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(xi) issue the Transferor Interest to the Transferor in
accordance with subsection 4.04(a) and any Transferor Certificates in
accordance with subsection 4.04(b); and
(xii) subject to compliance with the Transaction Documents,
engage in such other related activities as may be required or
convenient in connection with conservation of the Trust Estate and the
making of payments to the Noteholders and distributions to the
applicable Transferor.
In connection with any of the foregoing, the Trust may (x) execute and
deliver, and/or accept, such instruments, agreements, certificates, UCC
financing statements and other documents, and create such security interests, as
may be necessary or desirable in connection therewith, and (y) subject to the
terms of this Agreement, take such other action as may be necessary or
incidental to the foregoing.
(b) Notwithstanding any other provision of this Agreement, the Trust,
and each of the Beneficiary, on behalf of the Trust, and the Owner Trustee, on
behalf of the Trust, is hereby authorized and will have the power to execute and
deliver from time to time loan agreements, underwriting agreements, terms
agreements, selling agent agreements, purchase agreements, private placement
agreements, swap and other derivative agreements, including performance
agreements, indentures, indenture supplements, terms documents, notes, security
agreements and other agreements and instruments as are consistent with the
purposes of the Trust. Without limiting the generality of the foregoing, the
Trust, and each of the Beneficiary, on behalf of the Trust, and the Owner
Trustee, on behalf of the Trust, is specifically authorized to execute and
deliver without any further act, vote or approval, and notwithstanding any other
provision of this Agreement, the Delaware Statutory Trust Act or other
applicable law, rule or regulation, agreements, documents or securities relating
to the purposes of the Trust, including:
(i) the Transaction Documents and each Issuer Certificate (as
defined in the Indenture);
(ii) the Notes;
(iii) each interest rate, basis or currency swap, cap, collar,
guaranteed investment contract or other derivative agreement, including
agreements related thereto, between the Trust and a counterparty to
manage interest rate, basis or currency risk relating to the Notes;
(iv) any certificate evidencing the Transferor Interest,
substantially in the form attached as Exhibit B;
(v) any documents relating to listing securities on the
Luxembourg Stock Exchange; and
(vi) any other document necessary or desirable in connection
with the fulfillment of the purposes of the Trust described in, and
pursuant to, subsection 2.03(a).
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The authorization set forth in the preceding sentence will not be
deemed a restriction on the power and authority of the Beneficiary and the Owner
Trustee, on behalf of the Trust, to execute and deliver other agreements,
documents, instruments and securities or to take other actions on behalf of the
Trust in connection with the fulfillment of the purposes of the Trust described
in, and pursuant to, subsection 2.03(a).
(c) Each of the Beneficiary, on behalf of the Trust, and the Owner
Trustee, on behalf of the Trust, is hereby authorized and will have the power to
execute and file any Periodic Filings on behalf of the Trust.
(d) Either the Owner Trustee or the Beneficiary will at all times
maintain the books, records and accounts of the Trust separate and apart from
those of any other Person, and will cause the Trust to hold itself out as being
a Person separate and apart from any other Person.
(e) The Trust will not engage in any business or own any assets
unrelated to the purposes of the Trust.
Section 2.04. Appointment of Owner Trustee. The Beneficiary
hereby appoints Wilmington Trust Company as Owner Trustee of the Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein and in the Delaware Statutory Trust Act.
Section 2.05. Initial Capital Contribution of Trust Estate.
The Beneficiary hereby assigns, grants and transfers over to the Owner Trustee,
on behalf of the Trust, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Beneficiary, as of the date
hereof, of the foregoing contribution, which will constitute the initial Trust
Estate.
Section 2.06. Declaration of Trust. The Owner Trustee hereby
declares that it will hold the contributions described in Section 2.05, and the
other documents and assets described in Section 2.03, together with any
payments, proceeds or income of any kind from such documents or assets or any
other source and any other property transferred, assigned, set over, pledged or
otherwise conveyed to, and held by, the Trust pursuant to this Agreement, the
Transfer and Servicing Agreement, the Indenture or any Indenture Supplement
(collectively, the "Trust Estate"), upon the trust set forth herein and for the
sole use and benefit of the Beneficiary. It is the intention of the parties
hereto that the Trust constitute a statutory trust under the Delaware Statutory
Trust Act and that this Agreement constitute the governing instrument of such
statutory trust. The parties hereto agree that they will take no action contrary
to the foregoing intention. Effective as of the date hereof, the Owner Trustee
will have all rights, powers and duties set forth herein and, to the extent not
inconsistent herewith, in the Delaware Statutory Trust Act with respect to
accomplishing the purposes of the Trust.
Section 2.07. Title to Trust Estate. Legal title to all of the
Trust Estate will be vested at all times in the Trust as a separate legal
entity.
Section 2.08. Situs of Trust. The Trust will be located in the
State of Delaware and administered in the States of Delaware and New York. All
Issuer Accounts maintained by the Owner Trustee on behalf of the Trust will be
located in the State of Delaware or New York. The Trust will not have any
employees in any state other than Delaware; provided, however, that nothing
herein will restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only in
the State of Delaware or New York, and payments will be made by the Trust only
from the State of Delaware or New York. The only office of the Trust will be at
the Corporate Trust Office in the State of Delaware.
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Section 2.09. Nature of Interest in the Trust Estate. No
Beneficiary will have any legal title to or right to possession of any part of
the Trust Estate. No Beneficiary, as a beneficial owner of the Trust, has any
interest in specific property of the Trust.
Section 2.10. Tax Matters. The parties hereto intend that, for
income and franchise tax purposes, the Trust will be treated as a security
device and disregarded as an entity and its assets will be treated as owned in
whole by the Beneficiary, and the parties hereto will file all their tax returns
in a manner consistent with that intent unless otherwise required by a taxing
authority. Except as otherwise expressly provided herein, any tax elections
required or permitted to be made by the Trust under the Code or otherwise will
be made by the Beneficiary. The Trust will not elect to be treated as a
corporation for any tax purpose.
Section 2.11. Fiscal Year. The fiscal year of the Trust will
end on the last day of December of each year.
Section 2.12. Closing. The initial transfer, assignment,
set-over, pledge and conveyance of the Trust Estate took place on May 19, 2005
at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
Section 2.13. Books and Records. The Beneficiary agrees to
record and file, at its own expense, any financing statements (and amendments
with respect to such financing statements when applicable) required to be filed
with respect to the Trust Estate assigned by the Transferor pursuant to the
Transfer and Servicing Agreement, meeting the requirements of applicable law in
such a manner and in such jurisdictions as are necessary under the applicable
UCC to perfect the transfer, assignment, set-over, pledge and conveyance of the
Trust Estate to the Trust, and to deliver a file-stamped copy of such financing
statements or amendments or other evidence of such filings to the Trust
(excluding such amendments, which will be delivered promptly after filing).
Section 2.14. Limitation on Liability of Transferor and
Others. The Transferor and any director or officer or employee or agent or
member of the Transferor may rely in good faith on the advice of counsel or on
any document of any kind, prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Transferor, in its capacity
as such, will not be under any obligation to appear in, prosecute or defend any
legal action that will not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
The Beneficiary, as beneficial owner of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware, 8 Del. C. xx.xx. 101 et seq.
Section 2.15. Representations and Warranties of each
Beneficiary. Each Beneficiary hereby represents and warrants to the Owner
Trustee that:
(a) Such Beneficiary is duly organized or incorporated and
validly existing in good standing under the laws of the jurisdiction of its
organization or incorporation and has, in all material respects, full power and
authority to own its properties and to conduct its business as presently owned
or conducted.
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(b) Such Beneficiary has full power and authority to execute,
deliver and perform its obligations under this Agreement and all of the
transactions contemplated hereby and in the other Transaction Documents to which
such Beneficiary is a party, and has taken all necessary limited liability
company action to authorize the execution, delivery and performance by it of
this Agreement; such Beneficiary has full power and authority to assign the
property to be assigned to and deposited with the Trust pursuant to Section 2.05
of this Agreement, Section 2.1 of the Transfer and Servicing Agreement and the
granting clause of the Indenture.
(c) The execution, delivery and performance of this Agreement
by such Beneficiary does not violate any provision of any existing law or
regulation applicable to such Beneficiary or any order or decree of any court to
which such Beneficiary is subject or the organizational documents of such
Beneficiary, or any material mortgage, security agreement, indenture, contract
or other agreement to which such Beneficiary is a party or by which such
Beneficiary or any significant portion of such Beneficiary's properties is bound
(other than violations of such laws, regulations, orders, decrees, mortgages,
security agreements, indentures, contracts and other agreements which,
individually or in the aggregate, in such Beneficiary's reasonable judgment,
would not have a material adverse effect on such Beneficiary's ability to
perform its obligations under this Agreement).
(d) The execution and delivery by such Beneficiary of this
Agreement, the performance by such Beneficiary of the transactions contemplated
by this Agreement and the fulfillment by such Beneficiary of the terms hereof
will not conflict with or violate any Requirements of Law applicable to such
Beneficiary.
(e) There is no litigation, investigation or administrative
proceeding before any court, tribunal, regulatory body presently pending, or, to
the best knowledge of such Beneficiary, threatened, against such Beneficiary
with respect to this Agreement or the transactions contemplated hereby and there
is no litigation or proceeding against such Beneficiary or any significant
portion of its properties which would, individually or in the aggregate, in such
Beneficiary's reasonable belief, have a material adverse effect on the
transactions contemplated by this Agreement.
ARTICLE III
BENEFICIAL INTEREST
Section 3.01. Initial Ownership. Upon the creation of the
Trust, the Beneficiary is the sole beneficial owner of the Trust.
Section 3.02. Restrictions on Transfer. The Beneficial
Interest will initially be beneficially owned by RFC V. Transfers of all or a
portion of the Beneficial Interest may be made between RFC V and any other
Person who is an Affiliate of RFC V (a "Permitted Affiliate Transferee") upon
delivery to the Master Trust Trustee and the Owner Trustee of an Issuer Tax
Opinion and a Master Trust Tax Opinion with respect to such transfer. To the
fullest extent permitted by applicable law, the Beneficiary may not sell,
participate, transfer, assign, exchange or otherwise pledge or convey all or any
part of its right, title and interest in and to the Beneficial Interest to any
other Person, except to any Permitted Affiliate Transferee. Any purported
transfer by a Beneficiary of all or any part of its right, title and interest in
and to the Beneficial Interest to any Person will be effective only upon the
issuance of an Issuer Trust Tax Opinion and a Master Trust Tax Opinion (each as
defined in the Indenture), which will not be an expense of the Owner Trustee and
the satisfaction of any additional conditions to the designation of an
Additional Transferor provided in Section 2.8 of the Transfer and Servicing
Agreement. To the extent permitted by applicable law, any purported transfer by
a Beneficiary of all or any part of its right, title and interest in and to the
Beneficial Interest which is not in compliance with the terms of this Section
3.02 will be null and void.
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ARTICLE IV
DISTRIBUTIONS OF FUNDS
Section 4.01. Distribution of Funds. All funds received by the
Trust to the extent not encumbered by the Indenture or any Indenture Supplement
and otherwise available for distribution (or if encumbered by the Indenture,
which have been released by the relevant parties benefiting from such
encumbrance) will be distributed to the Beneficiary.
Section 4.02. Payments from Trust Estate Only. All payments to
be made by the Trust under this Agreement will be made only from the income and
the capital proceeds derived from the Trust Estate and only to the extent that
the Trust will have received income or capital proceeds from the Trust Estate.
The Beneficiary agrees that it will look solely to the income and capital
proceeds derived from the Trust Estate (to the extent available for payment as
herein provided) and that, except as specifically provided herein, the Owner
Trustee will not be subject to any liability in its individual capacity under
this Agreement to the Beneficiary or to any other Person.
Section 4.03. Method of Payment. All amounts payable to the
Beneficiary pursuant to this Agreement will be paid by the Owner Trustee on
behalf of the Trust to the Beneficiary or a nominee therefor in such manner as
the Beneficiary may from time to time designate in written instructions to the
Owner Trustee. All funds received by the Owner Trustee on behalf of the Trust
not later than 2:00 p.m. (New York City time) on a Business Day will be applied
by the Owner Trustee on that Business Day. Funds received after that time will
be applied on the next following Business Day.
Section 4.04. Transferor Interest; Transferor Certificates.
(a) The Transferor will hold the Transferor Interest having
such rights as are set forth in this Agreement and the other Transaction
Documents. Such Transferor Interest includes the right to receive amounts
specified in the Indenture, any Indenture Supplement or the Transfer and
Servicing Agreement to be distributed to the holders of the Transferor Interest.
(b) At the election of the Transferor (which election may,
from time to time, be changed or otherwise revised by the Transferor upon
written notice by the Transferor to the Owner Trustee), a Transferor Certificate
representing the Transferor's interest in the Transferor Interest may be issued
to the Transferor in registered form, substantially in the form attached as
Exhibit B (the "Transferor Certificate"). The Transferor Certificate will not
entitle its holder to any benefit under this Agreement, or be valid for any
purpose, unless there will appear on such Transferor Certificate a certificate
of authentication substantially in the form provided in Exhibit B, executed by
the Owner Trustee or the Owner Trustee's authentication agent, by manual
signature; such authentication will constitute conclusive evidence that the
Certificate will have been duly authenticated and delivered hereunder. Each
Transferor Certificate will be dated the date of its authentication.
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(c) To the fullest extent permitted by applicable law, neither
the Transferor Certificates (or any interest therein) nor any Transferor
Interest (or any interest therein) may be sold, transferred, assigned,
participated, pledged or otherwise disposed of to any Person; provided, however,
that a Transferor Certificate (or any interest therein) may be sold,
transferred, assigned, participated, pledged or otherwise disposed of if the
transferor thereof has provided the Owner Trustee and the Indenture Trustee with
an Issuer Tax Opinion and, if applicable, a Master Trust Tax Opinion, relating
to such sale, transfer, assignment, participation, pledge or other disposition;
provided further that any transfer by a Transferor of all or any part of its
right, title and interest in and to the Transferor Interest to American Express
Credit Corporation (or any subsidiary thereof) will not require delivery of an
Issuer Tax Opinion.
(d) If (i) a mutilated Transferor Certificate will be
surrendered to the Owner Trustee, or if the Owner Trustee will receive evidence
to its satisfaction of the destruction, loss or theft of a Transferor
Certificate and (ii) in the case of a destroyed, lost or stolen Transferor
Certificate, there will be delivered to the Owner Trustee (as such and in its
individual capacity) such security or indemnity as may be required by it to save
it harmless, then the Owner Trustee on behalf of the Trust will execute and the
Owner Trustee will authenticate and deliver, in exchange for or in lieu of the
mutilated, destroyed, lost or stolen Transferor Certificate, a new Transferor
Certificate of like tenor and denomination. In connection with the issuance of
any new Transferor Certificate under this subsection 4.04(d), the Owner Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge or expense that may be imposed in connection therewith. Any
duplicate Transferor Certificate issued pursuant to this subsection 4.04(d) will
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Transferor Certificate will
be found at any time.
ARTICLE V
ACTIONS BY OWNER TRUSTEE
Section 5.01. Prior Notice to Beneficiary and Transferor with
Respect to Certain Matters. With respect to the following matters, unless
otherwise instructed by the Beneficiary and the Transferor, the Owner Trustee
will not take action unless at least 30 days before the taking of such action
the Owner Trustee will have notified the Beneficiary and the Transferor:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on any Receivable) and the settlement of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on any Receivable);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
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(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Beneficiary or the
Transferor;
(e) the amendment, change or modification of the Transfer and
Servicing Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner that would not materially adversely affect the interests
of the Beneficiary or the Transferor; or
(f) the appointment pursuant to the Indenture of a replacement
or successor Note Registrar or Indenture Trustee, or the consent to the
assignment by the Note Registrar or Indenture Trustee of its obligations under
the Indenture.
Section 5.02. Restrictions on Power. The Owner Trustee will
not be required to take or refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under any of the Transaction Documents or would be contrary to Section 2.03.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. Action Upon Instructions.
(a) It is the intention of the Beneficiary that the powers and
duties of the Owner Trustee are to be purely ministerial only. Accordingly,
subject to subsections 6.01(b) and 6.01(c), and Article VII, the Beneficiary
will direct the Owner Trustee in the management of the Trust and the Trust
Estate. Such direction will be exercised at any time only by written instruction
of the Beneficiary delivered to the Owner Trustee pursuant to this Article VI.
Notwithstanding any other provision of this Agreement, but subject to Section
2.03, the Owner Trustee will not take any action including but not limited to
the execution of any documents, certificates or other instruments (other than
the Transaction Documents and any documents, certificates or other instruments
attached thereto or contemplated thereby), unless it receives written
instructions from the Beneficiary.
(b) The Owner Trustee will take such action or actions as may
be specified in any instructions delivered in accordance with subsection
6.01(a); provided, however, that the Owner Trustee will not be required to take
any such action if the Trustee Bank will have been advised by counsel that such
action (i) is contrary to the terms hereof or of any document contemplated
hereby to which the Trust or the Owner Trustee is a party or is otherwise
contrary to law, or (ii) is reasonably likely to result in liability on the part
of the Trustee Bank, unless the Trustee Bank will have received additional
indemnification or security satisfactory to the Trustee Bank from the
Beneficiary against all costs, expenses and liabilities arising from the Owner
Trustee's taking such action.
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(c) No Beneficiary will direct the Owner Trustee to take or
refrain from taking any action contrary to this Agreement, nor will the Owner
Trustee be obligated to follow any such direction.
(d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Transaction Document, or
such provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action to be adopted, the Owner Trustee will promptly give notice to
the Beneficiary requesting written instructions as to the course of action to be
adopted and, to the extent the Owner Trustee acts in good faith in accordance
with such written instructions received from the Beneficiary, the Owner Trustee
will not be liable on account of such action to any Person. If the Owner Trustee
will not have received appropriate written instructions within 30 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice), it may, but will be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement, as it deems to be in the best
interests of the Beneficiary, and will have no liability to any Person for such
action or inaction.
(e) The Owner Trustee will, subject to this Section 6.01, act
in accordance with the instructions given to it by the Beneficiary pursuant to
subsection 6.01(b), and to the extent the Owner Trustee acts in good faith in
accordance with such instructions, the Owner Trustee will not be liable on
account of such action to any Person.
Section 6.02. No Duty to Act Under Certain Circumstances.
Notwithstanding anything contained herein to the contrary, neither the Trustee
Bank nor the Owner Trustee, except a Trustee Bank authorized as co-trustee, will
be required to take any action in any jurisdiction other than in the State of
Delaware if the taking of such action would (i) require the consent or approval
or authorization or order of or the giving of notice to, or the registration
with or taking of any action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or governmental charge under the laws of any jurisdiction
or any political subdivisions thereof in existence on the date hereof other than
the State of Delaware becoming payable by the Trustee Bank; or (iii) subject the
Trustee Bank to personal jurisdiction in any jurisdiction other than the State
of Delaware for causes of action arising from acts unrelated to the consummation
of the transactions by the Trustee Bank or the Owner Trustee, as the case may
be, contemplated hereby. The Owner Trustee will be entitled to obtain advice of
counsel (which advice will be at the expense of the Beneficiary) to determine
whether any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Owner Trustee may, or if instructed to do so by
the Beneficiary, will, appoint an additional trustee pursuant to Section 10.05
hereby to proceed with such action.
Section 6.03. No Duties Except Under Specified Agreements or
Instructions.
(a) The Owner Trustee will not have any duty or obligation to
manage, control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of, create, maintain or perfect any security interest or
title in or otherwise deal with any part of the Trust Estate, prepare, file or
record any document or report (including any tax related filing for any holder
of Notes), or to otherwise take or refrain from taking any action under, or in
connection with, this Agreement, the Trust or any document contemplated hereby
to which the Trust or the Owner Trustee is a party, except as expressly provided
by the terms of this Agreement or in written instructions from the Beneficiary
received pursuant to Section 6.01; and no implied duties or obligations will be
read into this Agreement against the Owner Trustee. Unless otherwise directed by
the Beneficiary in accordance with subsection 6.01(a), the Owner Trustee will
have no obligation or duty to take any action the Trust is authorized and
empowered to take pursuant to subsection 2.03(a). The Owner Trustee nevertheless
agrees that it will, in its individual capacity and at its own cost and expense,
promptly take all action as may be necessary to discharge any lien, pledge,
security interest or other encumbrance on any part of the Trust Estate which
results from actions by or claims against the Trustee Bank not related to the
ownership of any part of the Trust Estate.
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(b) The Owner Trustee agrees that it will not manage, control,
use, lease, sell, dispose of or otherwise deal with any part of the Trust Estate
except (i) in accordance with the powers granted to, or the authority conferred
upon, the Owner Trustee pursuant to this Agreement, or (ii) in accordance with
the express terms hereof or with written instructions from the Beneficiary
pursuant to Section 6.01. Unless otherwise directed by the Beneficiary in
accordance with subsection 6.01(a), the Owner Trustee will not be required to
perform any obligations or duties of the Trust under the Indenture, which duties
and obligations will be the sole responsibility of the Beneficiary.
Section 6.04. Trust Operation. The operations of the Trust
will be conducted in accordance with the following standards:
(a) the Trust will act solely in its own name through the
Owner Trustee or the Beneficiary;
(b) the Trust will not incur any indebtedness for money
borrowed or incur any obligations except in connection with the purposes set
forth in Section 2.03 of this Agreement;
(c) the Trust's funds and assets will at all times be
maintained separately from those of the Beneficiary and its Affiliates;
(d) the Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liabilities distinct from those of the
Beneficiary, the Beneficiary's Affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Trust and
not that of the Beneficiary or any Affiliates thereof, and will use its best
efforts to avoid the appearance (i) of conducting business on behalf of the
Beneficiary or any Affiliates thereof or (ii) that the assets of the Trust are
available to pay the creditors of the Beneficiary or any Affiliates thereof;
(e) the Trust will not hold itself out as being liable for the
debts of the Beneficiary or any Affiliates thereof;
(f) the Trust will not engage in any transaction with the
Beneficiary or any Affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such transaction is otherwise on terms
neither more favorable nor less favorable than the terms and conditions
available at the time to the Trust for comparable transactions with other
Persons; and
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(g) to the fullest extent permitted by applicable law, the
Trust will not enter into any voluntary bankruptcy or insolvency proceeding
without a finding by the Owner Trustee that the Trust's liabilities exceed its
assets or that the Trust is unable to pay its debts in a timely manner as they
become due.
Section 6.05. Execution of Documents. The Owner Trustee will,
at the written direction of the Beneficiary, execute and deliver on behalf of
the Trust such instruments, agreements and certificates contemplated hereby to
which the Trust is a party (such direction to be conclusively evidenced by the
Owner Trustee's execution and delivery of such documents to, and acceptance by,
the Beneficiary or its counsel). The Beneficiary hereby instructs the Owner
Trustee to execute, on behalf of the Trust, the Transaction Documents to which
the Trust is a party and any documents, certificates or other instruments
attached thereto or contemplated thereby.
ARTICLE VII
CONCERNING THE TRUSTEE BANK
Section 7.01. Acceptance of Trusts and Duties. The Trustee
Bank accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Trustee Bank also agrees to disburse all moneys actually received by it
constituting part of the Trust Estate in accordance with the terms of this
Agreement. The Trustee Bank will not be answerable or accountable under any
circumstances in its individual capacity, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03, (iii) for the failure by
the Owner Trustee to perform obligations expressly undertaken by it in the last
sentence of subsection 6.03(a) or (iv) for taxes, fees or other charges on,
based on or measured by, any fees, commissions or other compensation earned by
the Trustee Bank for acting as trustee hereunder. In particular, but not by way
of limitation:
(a) the Trustee Bank will not be personally liable for any
error of judgment made in good faith by a Responsible Officer of the Owner
Trustee so long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) the Trustee Bank will not be personally liable with
respect to any action taken or omitted to be taken by the Owner Trustee in good
faith in accordance with the instructions of the Beneficiary;
(c) no provision of this Agreement or any Transaction Document
will require the Trustee Bank to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder,
if the Trustee Bank will have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
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(d) Under no circumstance will the Trustee Bank be personally
liable for the accuracy or performance of any representation, warranty,
covenant, agreement or other obligation, including any indebtedness, of the
Trust;
(e) The Trustee Bank will not be personally responsible or
liable for or in respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Beneficiary or with respect to any agreement
entered into by the Trust;
(f) Under no circumstances will the Trustee Bank be
responsible or liable for the action or inaction of the Beneficiary, nor will
the Trustee Bank be responsible for monitoring the performance of the
Beneficiary's duties hereunder or of any other Person acting for or on behalf of
the Trust;
(g) In no event will the Trustee Bank be personally liable for
special, consequential or punitive damages unless such damages result from its
willful misconduct or negligence, for the acts or omissions of its nominees,
correspondents, clearing agencies or securities depositories, for the acts or
omissions of brokers or dealers, and for any losses due to forces beyond the
control of the Trustee Bank, including strikes, work stoppages, acts of war or
terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of
God and interruptions, loss or malfunctions of utilities, communications or
computer (software and hardware) services. The Trustee Bank will have no
responsibility for the accuracy of any information provided to the Beneficiary
or any other Person that has been obtained from, or provided to the Trustee Bank
by, any other Person;
(h) The Trustee Bank will not be liable for the default or
misconduct of the Indenture Trustee under any of the Transaction Documents or
otherwise, and the Trustee Bank will have no obligation or liability to perform
the obligations of the Trust under this Agreement or the Transaction Documents,
in each case that are required to be performed by the Indenture Trustee under
the Indenture; and
(i) the Trustee Bank will be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement, at the request, order or direction of the
Beneficiary, unless the Beneficiary has offered to the Trustee Bank security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by the Trustee Bank therein or thereby. The right of the Trustee
Bank to perform any discretionary act enumerated in this Agreement or in any
Transaction Document will not be construed as a duty, and the Trustee Bank will
not be answerable for other than its negligence or willful misconduct in the
performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee will
furnish to the Beneficiary and the Indenture Trustee, promptly upon written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee with respect to the Trust or the Trust Estate.
Section 7.03. Representations and Warranties. The Trustee
Bank, other than a Trustee Bank appointed as a co-trustee, hereby represents and
warrants to the Beneficiary that:
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(a) The Trustee Bank is a Delaware banking corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. The Trustee Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(b) The Trustee Bank has taken all corporate action necessary
to authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) None of the execution nor the delivery by it of this
Agreement, the performance by it of its obligations under this Agreement, or the
consummation by it of the transactions contemplated hereby nor compliance by the
Trustee Bank with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Trustee Bank or any judgment or order binding on the
Trustee Bank, or constitute any default under (i) its charter documents or
by-laws or (ii) any indenture, mortgage, lease, license, contract, agreement or
instrument to which the Trustee Bank is a party or by which the Trustee Bank or
any of the Trustee Bank's properties may be bound.
(d) The Trustee Bank complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware statutory trust.
Section 7.04. Reliance; Advice of Counsel. (a) The Owner
Trustee will incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any entity as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect. As
to any fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Owner Trustee may for all purposes rely on an officer's
certificate of the relevant party, as to such fact or matter, and such officer's
certificate will constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the administration of the Trust, the Owner Trustee may,
at the expense of the Trust (i) execute the trust or any of the powers hereof
and perform its powers and duties hereunder directly or through agents or
attorneys, and the Owner Trustee will not be liable for the default or
misconduct of any agent or attorney selected by the Owner Trustee with
reasonable care; and (ii) consult with counsel, accountants and other skilled
persons to be selected with reasonable care and employed by it, and the Owner
Trustee will not be liable for anything done, suffered or omitted in good faith
by it in accordance with the advice or opinion of any such counsel, accountants
or other skilled persons.
Section 7.05. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trust hereunder, the Trustee Bank
acts solely as Owner Trustee hereunder and not in its individual capacity; and
all Persons having any claim against the Trust or the Owner Trustee, whether by
reason of the transactions contemplated by this Agreement or otherwise, will
look only to the Trust Estate (or a part thereof, as the case may be) for
payment or satisfaction thereof, except as specifically provided in this Article
VII.
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Section 7.06. No Representations and Warranties as to the
Trust Estate. The Owner Trustee makes no representation or warranty as to, and
will not be liable for, the title, value, condition, design, operation,
merchantability or fitness for use of the Trust Estate (or any part thereof) or
any other representation or warranty, express or implied, whatsoever with
respect to the Trust Estate (or any part thereof) except that the Owner Trustee,
in its individual capacity, hereby represents and warrants to the Beneficiary
that it will comply with the last sentence of Section 6.03(a).
Section 7.07. Signature of Returns. The Beneficiary will sign
on behalf of the Trust any Periodic Filings of the Trust or other documents
relating to the Trust prepared by, or on behalf of, the Beneficiary.
Section 7.08. Trustee Bank May Own Notes. The Trustee Bank may
become the owner or pledgee of Notes and may deal with the Transferor, the
Administrator and the Indenture Trustee in banking transactions with the same
rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION
Section 8.01. Trustee Bank's Fees and Expenses. The Transferor
will pay to the Trustee Bank all fees and other charges described in a separate
fee agreement dated as of the date hereof between the Transferor and the Trustee
Bank promptly when due thereunder and reimburse the Trustee Bank for all other
reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) incurred by it in connection with its acting as Owner
Trustee of the Trust. Except to the extent specifically provided in Section 7.06
of the Indenture, payment of such fees and expenses will not be a recourse
obligation of the Issuer.
Section 8.02. Indemnification. To the fullest extent permitted
by law, the Transferor will be liable, as primary obligor for, and will
indemnify the Trustee Bank and its successors, assigns, agents and servants
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or the action or inaction of the Owner
Trustee or the Trustee Bank hereunder; provided that the Transferor will not be
liable for or required to indemnify any Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01; provided further that the Transferor will not be
liable for or required to indemnify an Indemnified Party from and against
expenses arising or resulting from (i) the Indemnified Party's own willful
misconduct, bad faith or negligence, or (ii) the inaccuracy of any
representation or warranty contained in Section 7.03 made by the Indemnified
Party. In case any such action, investigation or proceeding will be brought
involving an Indemnified Person, the Transferor will assume the defense thereof,
including the employment of counsel and the payment of all expenses. The Trustee
Bank will have the right to employ separate counsel in any such action,
investigation or proceeding and to participate in the defense thereof and the
reasonable counsel fees and expenses of such counsel will be paid by the
Transferor. In the event of any claim, action or proceeding for which indemnity
will be sought pursuant to this Section 8.02, the Trustee Bank's choice of legal
counsel will be subject to the approval of the Beneficiary, which approval will
not be unreasonably withheld.
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Except to the extent specifically provided in Section 6.02 of
the Indenture, the payment of such indemnified amounts will not be a recourse
obligation of the Issuer.
The indemnification set forth herein will survive the
termination of this Agreement and the resignation or removal of the Trustee
Bank.
Section 8.03. Payments to the Owner Trustee. Any amounts paid
to the Trustee Bank pursuant to this Article VIII will be deemed not to be a
part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement. (a) The Trust
will dissolve upon the final distribution by the Owner Trustee of all moneys or
other property or proceeds of the Trust Estate in accordance with the Delaware
Statutory Trust Act. Any money or other property held as part of the Trust
Estate following such distribution will be distributed to the Beneficiary. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of the
Beneficiary will not (x) operate to terminate this Agreement or the Trust, or
(y) entitle the Beneficiary's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) The Beneficiary will not be entitled to revoke or
terminate the Trust.
(c) Upon completion of the winding up of the Trust in
accordance with the Delaware Statutory Trust Act, the Owner Trustee will cause
the Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810 of
the Delaware Statutory Trust Act and thereupon the Trust and this Agreement
(other than Article VII and Section 11.08) will terminate.
ARTICLE X
SUCCESSOR OWNER TRUSTEES, CO-TRUSTEES AND SEPARATE OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The
Owner Trustee will at all times (i) be a trust company or a banking corporation
under the laws of its state of incorporation or a national banking association,
having all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on a trust business in
the State of Delaware, (ii) comply with the provisions of Section 3807 (and any
other applicable Section) of the Delaware Statutory Trust Act; authorized to
exercise corporate trust powers, (iii) have a combined capital and surplus of at
least $50,000,000 (or have its obligations and liabilities irrevocably and
unconditionally guaranteed by an affiliated Person having a combined capital and
surplus of at least $50,000,000) and (iv) have (or have a parent which has) a
rating of at least "Baa3" by Moody's, at least "BBB-" by Standard & Poor's and,
if rated by Fitch, at least "BBB-" by Fitch, or if not rated, otherwise
satisfactory to each Note Rating Agency. If such corporation will publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 10.01, the combined capital and surplus of such corporation will be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Owner Trustee will cease to
be eligible in accordance with the provisions of this Section 10.01, the Owner
Trustee will resign immediately in the manner and with the effect specified in
Section 10.02.
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Section 10.02. Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Beneficiary, the
Transferor and the Administrator; provided, however, that such resignation and
discharge will only be effective upon the appointment of a successor Owner
Trustee. Upon receiving such notice of resignation, the Beneficiary will
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument will be delivered to the resigning Owner Trustee
and one copy to the successor Owner Trustee. If no successor Owner Trustee will
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee will cease to be eligible in
accordance with the provisions of Section 10.01 and will fail to resign after
written request therefor by the Beneficiary, or if at any time the Owner Trustee
will be legally unable to act, or will be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property will be appointed, or any
public officer will take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Beneficiary may, but will not be required to, remove the
Owner Trustee. If the Beneficiary will remove the Owner Trustee under the
authority of the immediately preceding sentence, the Beneficiary will promptly
(i) appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument will be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and (ii) pay all fees owed
to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section will not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 10.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Beneficiary will provide notice
of such resignation or removal of the Owner Trustee to each Note Rating Agency.
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Section 10.03. Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 10.02 will execute, acknowledge and
deliver to the Beneficiary and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee will become effective and such
successor Owner Trustee, without any further act, deed or conveyance, will
become fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee will upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Beneficiary and the predecessor
Owner Trustee will execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and confirming in
the successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee will accept appointment as provided
in this Section 10.03 unless at the time of such acceptance such successor Owner
Trustee will be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 10.03, the Beneficiary will mail notice of such
acceptance of appointment, including the name of such successor Owner Trustee to
the Transferor, the Administrator, the Indenture Trustee, the Noteholders and
each Note Rating Agency. If the Beneficiary will fail to mail such notice within
10 days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee will cause such notice to be mailed at the expense of
the Beneficiary.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section 10.03, such successor Owner Trustee will file an
amendment to the Certificate of Trust with the Secretary of State reflecting the
name and principal place of business of such successor Owner Trustee in the
State of Delaware.
Section 10.04. Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any corporation into which the
Owner Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Owner Trustee will be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, will be
the successor of the Owner Trustee hereunder (provided that such corporation
will meet the eligibility requirements set forth in Section 10.01), without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided further that (a) the Owner Trustee will mail notice
of such merger or consolidation to each Note Rating Agency and the Beneficiary
and (b) the Owner Trustee will file any necessary amendments to the Certificate
of Trust with the Secretary of State.
Section 10.05. Appointment of Co-Trustee or Separate Owner
Trustee. Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Estate may at the time be located, the Beneficiary and the
Owner Trustee acting jointly will have the power and will execute and deliver
all instruments to appoint one or more Persons approved by each of the
Beneficiary and the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust Estate, or any part thereof, and, subject to the other provisions of this
Section 10.05, such powers, duties, obligations, rights and trusts as the
Beneficiary and the Owner Trustee may consider necessary or desirable. If the
Beneficiary will not have joined in such appointment within 15 days after the
receipt by them of a request so to do, the Owner Trustee alone will have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement will be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee will be required pursuant to Section 10.03.
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Each separate trustee and co-trustee will, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee will be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee will be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) will be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement will be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Beneficiary and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner
Trustee will be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee will refer to this Agreement and
the conditions of this Article X. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, will be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument will be filed with the Owner Trustee
and a copy thereof given to the Beneficiary.
Any separate trustee or co-trustee may at any time appoint the
Owner Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee will die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts will vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time, including
in connection with the execution of additional indentures, by a written
amendment duly executed and delivered by the Beneficiary and the Owner Trustee,
without the consent of the Indenture Trustee or any of the Noteholders, upon
issuance of an Issuer Tax Opinion and, to the extent a Collateral Certificate is
included in the property of the Trust, a Master Trust Tax Opinion, which will
not be expenses of the Owner Trustee; provided, however, that such amendment
will not, as evidenced by an Officer's Certificate of each Transferor addressed
and delivered to the Owner Trustee and the Indenture Trustee, be reasonably
expected to have an Adverse Effect (as defined in the Indenture) and is not
reasonably expected to have an Adverse Effect at any time in the future;
provided further, however, that such amendment will not significantly change the
activities of the Trust. The Owner Trustee will not be responsible for
determining whether such amendment to this Agreement will significantly change
the activities of the Trust.
Additionally, notwithstanding any provision of this Article XI
to the contrary and in addition to the immediately preceding paragraph, this
Agreement may also be amended without the consent of the Indenture Trustee or
any of the Noteholders, upon delivery to the Owner Trustee and the Indenture
Trustee of an Issuer Tax Opinion and, to the extent a Collateral Certificate is
included in the property of the Trust, a Master Trust Tax Opinion, to provide
for (i) the establishment of multiple asset pools and the designation of Trust
Assets to be included as part of specific asset pools or (ii) those changes
necessary for compliance with securities law requirements; provided, however,
that (i) the Issuer shall deliver to the Indenture Trustee and the Owner Trustee
an Officer's Certificate to the effect that the Issuer reasonably believes that
such amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future and (ii) each Note Rating
Agency confirms in writing that such amendment will not cause a Ratings Effect.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, upon issuance of an Issuer Tax Opinion and, to the extent a
Collateral Certificate is included in the property of the Trust, a Master Trust
Tax Opinion and (A) in the case of a significant change to subsection 2.03(a)
which the Trust reasonably believes will not have an Adverse Effect (as defined
in the Indenture), with the consent of holders of not less than a majority of
the Outstanding Dollar Principal Amount of each series, class or tranche of
Notes affected by such change, and (B) in all other cases, with the consent of
holders of more than 66(2)/3% of the Outstanding Dollar Principal Amount of each
series, class or tranche of Notes affected by such change; provided, however,
that, without the consent of the holders of all of the Notes then outstanding,
no such amendment will (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments in respect of any
Receivables or any Collateral Certificates or distributions that are required to
be made for the benefit of the Noteholders or (b) reduce the aforesaid
percentage of the Outstanding Dollar Principal Amount of the Notes, the holders
of which are required to consent to any such amendment.
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Promptly after the execution of any such amendment or consent,
the Beneficiary will furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each Note Rating Agency.
It will not be necessary for the consent of the Noteholders or
the Beneficiary pursuant to this Section 11.01 to approve the particular form of
any proposed amendment or consent, but it will be sufficient if such consent
will approve the substance thereof.
Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee will cause the filing of such amendment
with the Secretary of State.
The Owner Trustee will be entitled to receive, and will be
fully protected in relying upon, an Officer's Certificate of the Transferor or
the Administrator to the effect that the amendment is authorized and that the
conditions to such amendment have been satisfied. The Owner Trustee may, but
will not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Beneficiary.
The Beneficiary will not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Beneficiary to and in its Beneficial Interest in the Trust Estate will
operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 11.03. Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Owner Trustee, the
Transferor, the Beneficiary, the Administrator and, to the extent expressly
provided herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement, whether express or implied, will be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 11.04. Notices. Unless otherwise expressly specified
or permitted by the terms hereof, all notices will be in writing and will be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee will be deemed given only upon actual receipt by the Owner
Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office; if
to the Transferor or the Beneficiary, addressed to American Express Receivables
Financing Corporation V LLC, 200 Xxxxx Street, Xxxx 000X, Xxx Xxxx, Xxx Xxxx
00000, with a copy to American Express Travel Related Services Company, Inc.,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; or, as
to each party, at such other address as will be designated by such party in a
written notice to each other party.
Section 11.05. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
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Section 11.06. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered will be an original, but all such counterparts will
together constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and
agreements contained herein will be binding upon, and inure to the benefit of,
the Transferor and its successors and permitted assigns, the Owner Trustee and
its successors and the Beneficiary and its successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Beneficiary will bind the successors and assigns of
the Beneficiary.
Section 11.08. Nonpetition Covenants. To the fullest extent
permitted by applicable law, notwithstanding any prior termination of the Trust
or this Agreement, the Owner Trustee (not in its individual capacity) and the
Beneficiary, by its acceptance of the Beneficial Interest, will not at any time
with respect to the Trust, the Beneficiary or any applicable Master Trust,
acquiesce, petition or otherwise invoke or cause the Trust, the Beneficiary or
any applicable Master Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Trust,
the Beneficiary or any applicable Master Trust under any Federal or state
bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Trust, the Beneficiary or any applicable Master Trust or any substantial
part of its property, or ordering the winding up or liquidation of the affairs
of the Trust, the Beneficiary or any applicable Master Trust; provided, however,
that this Section 11.08 will not operate to preclude any remedy described in
Article VII of the Indenture.
Section 11.09. No Recourse. The Beneficiary by accepting the
Beneficial Interest acknowledges that the Beneficial Interest does not represent
an interest in or obligation of the Transferor, the Administrator, the Owner
Trustee (in its individual capacity), the Indenture Trustee or any Affiliate
thereof, and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture, except as expressly provided in
the Transaction Documents.
Section 11.10. Headings. The headings of the various Articles
and Sections herein are for convenience of reference only and will not define or
limit any of the terms or provisions hereof.
Section 11.11. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES HEREUNDER WILL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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Section 11.12. Acceptance of Terms of Agreement. THE RECEIPT
AND ACCEPTANCE OF THE BENEFICIAL INTEREST BY THE BENEFICIARY, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, WILL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT,
AND WILL CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF
THIS AGREEMENT WILL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
THE BENEFICIARY.
Section 11.13. Integration of Documents. This Agreement,
together with the Transfer and Servicing Agreement, constitutes the entire
agreement of the parties hereto and thereto with respect to the subject matter
hereof and thereof and supersedes all prior agreements relating to the subject
matter hereof and thereof.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01. Intent of the Parties; Reasonableness . Intent
of the Parties; Reasonableness. The Transferor and the Trustee Bank acknowledge
and agree that the purpose of this Article XII is to facilitate compliance by
the Transferor with the provisions of Regulation AB and related rules and
regulations of the Commission. The Transferor shall not exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than the Transferor's compliance
with the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). The Trustee Bank agrees
to cooperate in good faith with any reasonable request by the Transferor for
information regarding the Trustee Bank which is required in order to enable the
Transferor to comply with the provisions of Items 1109(a), 1109(b), 1117 and
1119 of Regulation AB as it relates to the Trustee Bank or to the Trustee Bank's
obligations under this Agreement.
Section 12.02. Information to Be Provided by the Trustee Bank
.. The Trustee Bank shall, as promptly as practicable, notify the Transferor, in
writing, of: (i) the commencement of, a material development in or, if
applicable, the termination of, any and all legal proceedings against the
Trustee Bank or any and all proceedings which any property of the Trustee Bank
is the subject, that is material to the noteholders; and (ii) any such
proceedings known to be contemplated by governmental authorities. The Trustee
Bank shall also notify the Transferor, in writing, as promptly as practicable
following notice to or discovery by the Trustee Bank of any material changes to
proceedings described in the preceding sentence. In addition, the Trustee Bank
will furnish to the Transferor, in writing, the necessary disclosure regarding
the Trustee Bank describing such proceedings required to be disclosed under Item
1117 of Regulation AB, for inclusion in reports filed by or on behalf of the
Transferor pursuant to the Exchange Act.
Notwithstanding the provisions of Section 12.01, the Trustee
Bank shall (i) on an annual basis, provide to the Transferor such information
regarding the Trustee Bank as is requested for the purpose of compliance with
Items 1109(a), 1109(b), 1117 and 1119 of Regulation AB, and (ii) as promptly as
practicable following notice to or discovery by the Trustee Bank of any material
changes to such information, provide to the Transferor, in writing, such updated
information. Such information shall include, at a minimum:
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(A) the Trustee Bank's name and form of organization;
(B) a description of the extent to which the Trustee
Bank has had prior experience serving as a trustee for
asset-backed securities transactions involving credit card
receivables;
(C) a description of any affiliation between the
Trustee Bank and any of the following parties to a
Securitization Transaction, as such parties are identified to
the Trustee Bank by the Transferor in writing in advance of
such Securitization Transaction:
(1) the sponsor;
(2) any depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
In connection with the above-listed parties, a description of
whether there is, and if so the general character of, any
business relationship, agreement, arrangement, transaction or
understanding that is entered into outside the ordinary course
of business or is on terms other than would be obtained in an
arm's length transaction with an unrelated third party, apart
from the asset-backed securities transaction, that currently
exists or that existed during the past two years and that is
material to an investor's understanding of the asset-backed
securities.
-29-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY
By:_______________________________
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC,
as Beneficiary and Transferor
By:_______________________________
Name:
Title:
Acknowledged and Accepted:
AMERICAN EXPRESS ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Owner Trustee
By: _______________________________________________
Name:
Title:
[Amended and Restated Trust Agreement]
EXHIBIT A
[FORM OF] CERTIFICATE OF TRUST OF AMERICAN EXPRESS ISSUANCE TRUST
This Certificate of Trust of American Express Issuance Trust (the
"Trust"), has been duly executed and is being filed by the undersigned, as
trustee, to create a statutory trust under the Delaware Statutory Trust Act (12
Del. C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust created hereby is American
Express Issuance Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Wilmington Trust Company, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust will be effective May 18,
2005.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with subsection 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:_________________________________
Name:
Title:
EXHIBIT B
AMERICAN EXPRESS ISSUANCE TRUST
[FORM OF] TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS
TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED
OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE
TRUST AGREEMENT REFERRED TO HEREIN.
No. [__] One Unit
AMERICAN EXPRESS ISSUANCE TRUST
TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE REPRESENTS A TRANSFEROR INTEREST
RELATING TO THE
AMERICAN EXPRESS ISSUANCE TRUST (THE "TRUST")
The corpus of the Trust consists of the Trust Estate.
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that American Express Receivables Financing
Corporation V LLC is the registered owner of all of the Transferor Interest,
subject to the lien of the Notes as provided in the Amended and Restated
Indenture, dated as of March [__], 2006 (as amended and supplemented, the
"Indenture"), between The Bank of New York, as indenture trustee (the "Indenture
Trustee") and the Trust, existing pursuant to the American Express Issuance
Trust Amended and Restated Trust Agreement, dated as of March [__], 2006 (as
amended and supplemented, the "Trust Agreement"), between American Express
Receivables Financing Corporation V LLC, as beneficiary and as transferor (the
"Transferor"), and Wilmington Trust Company, as owner trustee (not in its
individual capacity, but solely as owner trustee the "Owner Trustee"). The
corpus of the Trust consists of the Trust Estate (as defined in the Trust
Agreement). Although a summary of certain provisions of the Amended and Restated
Transfer and Servicing Agreement, dated as of March [__], 2006 (as amended and
supplemented, the "Transfer and Servicing Agreement"), among the Transferor,
American Express Travel Related Services Company, Inc., as servicer and
administrator, the Trust, as issuer, and the Indenture Trustee, the Trust
Agreement and the Indenture (collectively, the "Agreements") is set forth below,
this Transferor Certificate does not purport to summarize the Agreements and
reference is made to the Agreements for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Owner Trustee. A copy of the
Agreements may be requested from the Owner Trustee by writing to the Owner
Trustee. To the extent not defined herein, the capitalized terms used herein
have the meanings ascribed to them in the Agreements.
This Transferor Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreements, to which Agreements, as
amended and supplemented from time to time, the Transferor by virtue of its
acceptance hereof assents and is bound.
This Transferor Certificate (this "Transferor Certificate")
represents all of the Transferor's interest in the Transferor Interest. The
Transferor Interest includes the right to receive a portion of the collections
and other amounts at the times and in the amounts specified in the Indenture and
any Indenture Supplement to be paid to the Transferor on behalf of the holder of
the Transferor Interest. In addition to the Transferor Certificate, Notes will
be issued to investors pursuant to the Indenture.
Unless otherwise specified in an Indenture Supplement with
respect to a particular Series of Notes, the Transferor has entered into the
Transfer and Servicing Agreement, and this Transferor Certificate is issued,
with the intention that, for federal, state and local income and franchise tax
purposes, (a) the Notes of each Series, Class or Tranche which are characterized
as indebtedness at the time of their issuance will qualify as indebtedness of
the Transferor secured by the applicable portion of the Trust Estate and (b) the
Trust shall not be treated as an association (or a publicly traded partnership)
taxable as a corporation. The Transferor, by the acceptance of this Transferor
Certificate, agrees to treat the Notes for federal, state and local income and
franchise tax purposes as indebtedness of the Transferor. Unless the certificate
of authentication hereon has been executed by or on behalf of the Owner Trustee,
by manual signature, this Transferor Certificate shall not be entitled to any
benefit under the Trust Agreement or be valid for any purpose.
THIS TRANSFEROR CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
IN WITNESS WHEREOF, the Trust has caused this Transferor
Certificate to be duly executed.
AMERICAN EXPRESS ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as
Owner Trustee
By:___________________________________________
Name:
Title:
Dated: [________], 20[__]
CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the within-mentioned
Trust Agreement.
Wilmington Trust Company, or Wilmington Trust Company,
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By ______________________________
Authenticating Agent
By __________________________ By ______________________________
Authorized Signatory Authorized Signatory
