EXHIBIT 99.01
ASSIGNMENT NO. 5 OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.06 of the Amended and Restated Master Pooling
and Servicing Agreement)
ASSIGNMENT NO. 5 OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated
as of February 7, 2002 (this "Assignment"), by and among (i) AMERICAN EXPRESS
CENTURION BANK, a Utah chartered, FDIC insured industrial loan company, and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION, a Delaware corporation, as
transferors (together, the "Transferors"), and (ii) THE BANK OF NEW YORK, a New
York banking corporation not in its individual capacity but solely as trustee
(the "Trustee"), pursuant to the Agreement referred to below.
WITNESSETH
WHEREAS, the Transferors and the Trustee and American Express
Travel Related Services Company, Inc., as the Servicer (the "Servicer"), are
parties to the Amended and Restated Master Pooling and Servicing Agreement,
dated as of May 1, 1998, as amended by the First Amendment, dated as of October
1, 2001 (as so amended, the "Agreement");
WHEREAS, pursuant to the Agreement, the Transferors wish to
designate Additional Accounts to be included as Accounts and to convey the
Receivables of such Additional Accounts, whether existing on the Additional
Account Cut-Off Date or thereafter created, to the Trust as part of the corpus
of the Trust (as each such term is defined in the Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Transferors and the Trustee hereby agree
as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined herein.
"Additional Accounts" has the meaning set forth in Section 2.
"Additional Account Closing Date" shall mean, with respect to
the Additional Accounts designated hereby, February 7, 2002.
"Additional Account Cut-Off Date" shall mean, with respect to
the Additional Accounts designated by this Assignment, the close of business on
January 27, 2002.
"Additional Account Selection Date" shall mean, for the added
accounts with the code designation "Q," the close of business on the cycle
billing date for such added accounts occurring in the period beginning on the
close of business on September 9, 2001 and ending at the close of business on
October 8, 2001.
2. Designation of Additional Accounts. On or before the date
hereof, the Transferors will deliver to the Trustee computer files, microfiche
lists or printed lists containing a true and complete schedule identifying all
Additional Accounts designated hereby by code designation "Q" (the "Additional
Accounts") and specifying for each Additional Account its account number and the
aggregate amount of Receivables outstanding in such Additional Account on the
Additional Account Cut-Off Date, which computer files or lists shall be Schedule
1 hereto and shall supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Transferors do hereby
transfer, assign, set over, sell and otherwise convey, without recourse except
as set forth in the Agreement, to the Trustee, on behalf of the Trust, for the
benefit of the Certificateholders, all their respective right, title and
interest in, to and under the Receivables of such Additional Accounts existing
at the close of business on the Additional Account Cut-Off Date and thereafter
created from time to time until the termination of the Trust, all monies due or
to become due and all amounts received with respect thereto and all Collections
and Recoveries and all proceeds (including "proceeds" as defined in the UCC)
thereof. The foregoing does not constitute and is not intended to result in the
creation or assumption by the Trust, the Trustee, any Investor Certificateholder
or any Series Enhancer of any obligation of the Servicer, the Transferors or any
other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto.
(b) The Transferors agree to record and file, at
their own expense, financing statements (and continuation statements when
applicable) with respect to the Receivables now existing and hereafter created
in Additional Accounts, meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and maintain
perfection of, the sale and assignment of their interest in such Receivables to
the Trust, and to deliver a file-stamped copy of each such financing statement
or other evidence of such filing to the Trustee on or prior to the Additional
Account Closing Date. The Trustee shall be under no obligation whatsoever to
file such financing or continuation statements or to make any other filing under
the UCC in connection with such sale and assignment.
(c) In connection with such sale, the Transferors
further agree, at their own expense, on or prior to the date of this Assignment,
to indicate in the appropriate computer files that Receivables created in
connection with the Additional Accounts designated hereby have been conveyed to
the Trust pursuant to the Agreement and this Assignment for the benefit of the
Certificateholders by including in the securitization field of such computer
files the code "Q" for each such Additional Account.
(d) In addition, the Transferors do hereby grant to
the Trustee a security interest in all of their right, title and interest,
whether now owned or hereafter acquired, in and to the Receivables existing in
each of the Additional Accounts at the close of business on the Additional
Account Cut-Off Date and thereafter created from time to time until the
termination of the Trust, all monies due or to become due and all amounts
received with respect thereto and all Collections and Recoveries and all
proceeds (including "proceeds" as defined in the UCC) thereof. This Assignment
constitutes a security agreement under the UCC.
4. Acceptance by Trustee. The Trustee hereby acknowledges its
acceptance on behalf of the Trust of all right, title and interest to the
property, now existing and hereafter created, conveyed to the Trust pursuant to
Section 3 of this Assignment, and declares that it shall maintain such right,
title and interest, upon the trust set forth in the Agreement for the benefit of
all Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Assignment, the
Transferors delivered to the Trustee the computer files or microfiche lists
described in Section 2 of this Assignment.
2
5. Representations and Warranties of the Transferors. Each
Transferor hereby severally represents and warrants to the Trustee, on behalf of
the Trust, as of the date of this Assignment and as of the Additional Account
Closing Date that:
(a) Legal Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation of such
Transferor enforceable against such Transferor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors'
rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity);
(b) Eligibility of Accounts. As of the Additional
Account Selection Date, each Additional Account designated hereby is an
Eligible Account and each Receivable in each Additional Account
designated hereby is an Eligible Receivable;
(c) Insolvency. As of the Additional Account Cut-Off
Date and the Additional Account Closing Date, such Transferor is not
insolvent and the transfer by such Transferor of Receivables arising in
the Additional Accounts to the Trust has not been made in contemplation
of the insolvency of such Transferor;
(d) Pay Out Event. Such Transferor reasonably
believes that (A) the addition of the Receivables arising in the
Additional Accounts will not, based on the facts known to such
Transferor, then or thereafter cause a Pay Out Event to occur with
respect to any Series and (B) no selection procedure was utilized by
such Transferor which would result in the selection of Additional
Accounts (from among the available Eligible Accounts owned by such
Transferor) that would be materially adverse to the interests of the
Investor Certificateholders of any Series as of the Additional Account
Closing Date;
(e) Security Interest. This Assignment constitutes a
valid sale, transfer and assignment to the Trustee of all right, title
and interest, whether now owned or hereafter acquired, of such
Transferor in the Receivables existing in each of the Additional
Accounts at the close of business on the Additional Account Cut-Off
Date or thereafter created, all monies due or to become due and all
amounts received with respect thereto and, to the extent set forth in
the UCC in effect in the relevant state, the "proceeds" thereof, or, if
this Assignment does not constitute a sale of such property, it creates
a valid and continuing security interest (as defined in the applicable
UCC) in favor of the Trustee in such property. Upon the filing of the
financing statements described in Section 3 of this Assignment and, in
the case of the Receivables hereafter created and the proceeds thereof,
upon the creation thereof, the Trustee shall have a first priority
perfected security or ownership interest in such property, except for
(i) Liens permitted under clause (d) of the definition of "Eligible
Receivable" in the Agreement, (ii) the interests of the holders of the
Exchangeable Transferor Certificate under the Agreement and (iii) the
right to receive interest and investment earnings (net of losses and
investment expenses) in respect of the Collection Account as provided
in the Agreement or any Series Account if so provided in the applicable
Supplement. The Receivables described in Section 3 of this Assignment
constitute "accounts" within the meaning of the applicable UCC;
(f) Creation. At the time of its transfer of any
Receivable to the Trustee pursuant to this Assignment, such Transferor
owned and had good and marketable title to such Receivable free and
clear of any lien, claim or encumbrance of any Person;
3
(g) Perfection. Such Transferor has caused or will
have caused, within ten (10) days of the initial execution of this
Assignment, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the Receivables
granted to the Trustee pursuant to this Assignment;
(h) Priority. Other than the security interest
granted to the Trustee pursuant to this Assignment, such Transferor has
not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed the Receivables described in Section 3 of this
Assignment. Such Transferor has not authorized the filing of and is not
aware of any financing statements against such Transferor that include
a description of such Receivables other than any financing statement
relating to the transfer and security interest granted to the Trustee
pursuant to this Assignment or the Agreement or that has been
terminated. Such Transferor is not aware of any judgment or tax lien
filings against such Transferor;
(i) No Conflict. The execution and delivery by such
Transferor of this Assignment, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms hereof
applicable to such Transferor, will not conflict with or violate any
Requirements of Law applicable to such Transferor or conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which such Transferor is a party or by
which it or its properties are bound;
(j) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of such Transferor,
threatened against such Transferor before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) asserting the invalidity of this Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated by
this Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of such Transferor, would materially and adversely
affect the performance by such Transferor of its obligations under this
Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment;
(k) All Consents. All authorizations, consents,
orders or approvals of any court or other governmental authority
required to be obtained by such Transferor in connection with the
execution and delivery of this Assignment by such Transferor and the
performance of the transactions contemplated by this Assignment by such
Transferor, have been obtained; and
(l) List of Accounts. As of the Additional Account
Closing Date, to the best knowledge of the Transferors, the computer
files or microfiche lists of Additional Accounts complies with the
requirements of Section 2 hereof.
The representations and warranties in clauses (e) through (h) above
shall survive until the termination of the Agreement. Such representations and
warranties speak of the date of this Assignment and as of the Additional Account
Closing Date but shall not be waived by any of the parties to this Assignment
unless each Rating Agency shall have notified the Transferors, the Servicer and
the Trustee in writing that such waiver will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is a
Rating Agency.
4
6. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
7. Counterparts. This Assignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(signature page follows)
5
IN WITNESS WHEREOF, each Transferor and the Trustee have
caused this Assignment to be duly executed by their respective officers as of
the day and year first above written.
AMERICAN EXPRESS CENTURION BANK,
as a Transferor
By /s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION,
as a Transferor
By /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Trustee
By /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
[Signature Page - Assignment No.5]
Schedule 1
[on file with the Trustee]
