EXHIBIT 4.8
SUPPLEMENTAL SERVICING AGREEMENT
THIS SUPPLEMENTAL SERVICING AGREEMENT is made as of May 19,
2005 (this "Agreement"), among American Express Travel Related Services Company,
Inc., a New York corporation (the "Servicer"), American Express Centurion Bank,
a Utah industrial bank ("Centurion"), American Express Bank, FSB, a federal
savings bank ("FSB," and together with Centurion, the "Subservicers"), and
American Express Receivables Financing Corporation V LLC, a Delaware limited
liability company ("RFC V" or the "Transferor").
RECITALS
WHEREAS, the Servicer and the Transferor are parties to the
Transfer and Servicing Agreement, dated as of May 19, 2005 (as amended and
supplemented from time to time, the "Transfer and Servicing Agreement"), among
the Transferor, the Servicer, the American Express Issuance Trust and The Bank
of New York, as Indenture Trustee (in such capacity, the "Indenture Trustee");
and
WHEREAS, pursuant to the Transfer and Servicing Agreement, the
Servicer has agreed to service and administer, or cause to be serviced and
administered, the Receivables; and
WHEREAS, the Transferor and the Servicer desire to memorialize
in this Agreement the terms on which the Servicer shall be compensated for
servicing and administering the Receivables allocated to the Transferor Interest
pursuant to the Transfer and Servicing Agreement; and
WHEREAS, subject to the terms and conditions of this
Agreement, the Servicer desires to engage the Subservicers to subservice and
administer certain Receivables; and
WHEREAS, each Subservicer desires to accept such engagement
and the rights, powers, duties, and obligations set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, and for other valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the Servicer, the
Subservicers, and the Transferor hereby agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Transfer and
Servicing Agreement, a copy of which has been delivered by the Servicer to each
Subservicer.
2. Servicing Compensation Relating to the Transferor Interest.
As compensation for servicing and administering the Receivables allocated to the
Transferor Interest pursuant to the Transfer and Servicing Agreement, the
Transferor shall pay to the Servicer, in immediately available funds on each
Payment Date, a servicing fee in an amount equal to one-twelfth of the product
of (i) 2% and (ii) the Transferor Amount as of the last day of the Monthly
Period preceding such Payment Date.
3. Engagement of the Subservicers. Pursuant to Section 3.1 of
the Transfer and Servicing Agreement, the Servicer hereby engages (i) Centurion
to subservice and administer the Receivables arising in the Accounts owned by
Centurion (the "Centurion Receivables") and (ii) FSB to subservice and
administer the Receivables arising in the Accounts owned by FSB (the "FSB
Receivables"). Each of Centurion and FSB hereby accepts such engagement.
4. Subservicing Fees. (a) As compensation for subservicing and
administering the Centurion Receivables in accordance with this Agreement, the
Servicer shall pay to Centurion, in immediately available funds on each Payment
Date, a subservicing fee in an amount equal to $1000 (the "Centurion
Subservicing Fee"). As compensation for subservicing and administering the FSB
Receivables in accordance with this Agreement, the Servicer shall pay to FSB, in
immediately available funds on each Payment Date, a subservicing fee in an
amount equal to $1000 (the "FSB Subservicing Fee," and together with the
Centurion Subservicing Fee, the "Subservicing Fees"). Each Subservicing Fee may
be adjusted from time to time to reflect such factors as the Servicer and the
applicable Subservicer mutually agree will result in a Subservicing Fee
determined to be fair consideration for the subservicing and administrative
obligations performed by such Subservicer.
(b) Payment of the Subservicing Fees shall be independent of,
and shall not be conditioned in any way on, the receipt by the Servicer of the
Servicing Fee under the Transfer and Servicing Agreement or the servicing
compensation described in Section 2 of this Agreement.
5. Duties of the Subservicers. (a) As agent for the Servicer,
each Subservicer shall take all actions reasonably requested by the Servicer to
subservice and administer the applicable Receivables, to collect and deposit
into the Collection Account payments due under such Receivables and to
charge-off as uncollectible such Receivables, in each case in accordance with
the Transfer and Servicing Agreement, the applicable Account Agreements, the
applicable Account Guidelines, and such Subservicer's customary and usual
servicing procedures for servicing credit or charge receivables comparable to
such Receivables. As agent for the Servicer, each Subservicer shall have full
power and authority, acting alone or through the Servicer, to do any and all
things in connection with such subservicing and administration which it may deem
necessary or desirable and which is permitted of the Servicer under the Transfer
and Servicing Agreement.
(b) No Subservicer shall be obligated to use separate
servicing procedures, offices, employees, or accounts for subservicing the
applicable Receivables from the procedures, offices, employees, and accounts
used by such Subservicer in connection with servicing other comparable
receivables. Each Subservicer may commingle Collections on the applicable
Receivables to the extent permitted of the Servicer under the Transfer and
Servicing Agreement.
(c) The Servicer shall furnish each Subservicer with any
files, records, or documents necessary or appropriate to enable such Subservicer
to carry out its subservicing and administrative duties hereunder. Each
Subservicer shall furnish the Servicer with any files, records, or documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under the Transfer and Servicing Agreement.
(d) Each Subservicer shall pay out of its own funds, without
reimbursement, all expenses incurred in connection with its subservicing
activities hereunder.
(e) Each Subservicer shall duly satisfy all obligations on its
part to be fulfilled under or in connection with each applicable Receivable and
the related Account, will maintain in effect all qualifications required under
Requirements of Law in order to subservice properly each applicable Receivable
and the related Account, and will comply in all material respects with all other
Requirements of Law in connection with subservicing each applicable Receivable
and the related Account, the failure to comply with which would have an Adverse
Effect.
(f) No Subservicer shall authorize any rescission or
cancellation of any Receivable except in accordance with the applicable Account
Guidelines or as ordered by a court of competent jurisdiction or other
Governmental Authority.
(g) No Subservicer shall take any action which, or omit to
take any action the omission of which, would impair the rights of the Trust or
the Indenture Trustee in any Receivable. No Subservicer shall reschedule,
revise, or defer payments due on any Receivable except in accordance with the
applicable Account Guidelines, nor shall it sell any assets in the Trust.
(h) Except in connection with its enforcement or collection of
an Account, no Subservicer shall take any action to cause any Receivable to be
evidenced by any instrument (as defined in the UCC).
(i) As reasonably requested by the Servicer, each Subservicer
shall (i) furnish the Servicer with true and complete copies of all reports,
statements, certificates, notices, and other documents received or generated by
such Subservicer in connection with its duties hereunder and (ii) cooperate with
the Servicer in taking any and all actions which the Servicer deems necessary in
order for it to satisfactorily perform its obligations under the Transfer and
Servicing Agreement. Nothing in this Agreement shall be construed as granting to
a Subservicer any right or power with respect to the Receivables that is more
expansive than that granted to the Servicer under the Transfer and Servicing
Agreement.
6. Reimbursement of the Servicer. Each Subservicer, severally
and not jointly, shall reimburse the Servicer for any loss arising from a claim
or demand (including any claim for damages and any demand to accept an
assignment of Receivables) that is made against the Servicer under the Transfer
and Servicing Agreement and that arises from such Subservicer's misconduct,
negligence, or failure to abide by the terms of this Agreement (including
provisions of the Transfer and Servicing Agreement made applicable by this
Agreement).
7. Representations, Warranties, and Covenants of the Parties.
Each party, for and as to itself only, hereby makes the following
representations, warranties, and covenants for the benefit of the other parties:
(a) Such party is and will remain a legal entity duly
organized and validly existing in good standing under the laws of the
jurisdiction of its organization. Such party has, in all material respects, full
power and authority to own its properties and conduct its business as presently
owned or conducted. Such party has and will have, in all material respects, full
power and authority to execute, deliver, and perform its obligations under this
Agreement.
(b) Such party is and will remain duly qualified to do
business, is and will remain in good standing as a foreign entity (or is exempt
from such requirements), and has obtained and will retain all necessary licenses
and approvals, in each jurisdiction in which its obligations under this
Agreement require such qualification, except where the failure to so qualify or
obtain licenses or approvals would not have a material adverse effect on its
ability to perform its obligations under this Agreement.
(c) Such party's execution, delivery, and performance of this
Agreement have been duly authorized by all necessary action on the part of such
party.
(d) This Agreement constitutes a legal, valid, and binding
obligation of such party, enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws affecting creditors' rights generally or by general
principles of equity.
(e) The execution and delivery of this Agreement by such
party, and the performance by such party of the transactions contemplated by
this Agreement, and the fulfillment by such party of the terms hereof and
thereof applicable to such party, will not conflict with, violate or 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 party is a party or by which it or its properties are bound.
(f) The execution and delivery of this Agreement by such
party, the performance by such party of the transactions contemplated by this
Agreement, and the fulfillment by such party of the terms hereof and thereof
applicable to such party, will not conflict with or violate any Requirements of
Law applicable to such party.
(g) There are no proceedings or investigations pending or, to
the best knowledge of such party, threatened against such party before any
Governmental Authority seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or seeking any determination or
ruling that, in the reasonable judgment of such party, would materially and
adversely affect the performance by such party of its obligations under this
Agreement.
(h) All authorizations, consents, orders, or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected, or given by such party in connection with the execution and
delivery of this Agreement by such party, and the performance of the
transactions contemplated by this Agreement by such party, have been duly
obtained, effected, or given and are and will remain in full force and effect.
8. Resignation or Termination of a Subservicer. A Subservicer
may resign at any time upon at least 45 days prior written notice to the
Servicer. The Servicer may terminate a Subservicer at any time upon at least 45
days prior written notice to such Subservicer. The Servicer also may terminate a
Subservicer at any time without prior notice if (i) such Subservicer fails to
perform its obligations hereunder or (ii) any event occurs which materially and
adversely affects the ability of such Subservicer or the Servicer to collect the
applicable Receivables, the ability of such Subservicer to perform its
obligations hereunder, or the ability of the Servicer to perform its obligations
under the Transfer and Servicing Agreement.
9. Term. Except as provided in Section 8 of this Agreement,
this Agreement shall continue in full force and effect until the earlier of (i)
the termination of the Servicer under the Transfer and Servicing Agreement or
(ii) the termination of the Transfer and Servicing Agreement.
10. Notices. All notices, requests, and other communications
permitted or required hereunder shall be in writing and shall be delivered
personally or mailed by certified mail, postage prepaid and return receipt
requested, or by telex or facsimile as follows:
If to the Servicer, addressed to:
American Express Travel Related Services Company, Inc.
American Express Tower
World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Treasurer (facsimile no. (000) 000-0000),
If to Centurion, addressed to
American Express Centurion Bank
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: President (facsimile no. (000) 000-0000),
If to FSB, addressed to
American Express Bank, FSB
4315 South 0000 Xxxx, 00-00-00
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: President (facsimile no. (000) 000-0000), and
If to RFC V, addressed to:
000 Xxxxx Xxxxxx, Xxxx 000X
Xxx Xxxx, Xxx Xxxx 00000
Attn: President (facsimile no. (000) 000-0000),
with a copy to American Express Travel Related Services
Company, Inc., as administrator, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel (facsimile no.
212-619-7099),
or to such other place within the United States of America as any party may
designate as to itself by written notice to the other parties. All notices given
by personal delivery or mail shall be effective on the date of actual receipt at
the appropriate address. Notice given by telex or facsimile shall be effective
upon actual receipt if received during the recipient's normal business hours or
the beginning of the next business day after receipt if received after the
recipient's normal business hours.
11. Non-Petition Covenant. The Servicer and each Subservicer
hereby covenants and agrees that it will not at any time institute against any
Transferor, or join in instituting against the Transferor, any case or
proceeding under the United States Bankruptcy Code or any other bankruptcy,
insolvency, or similar law.
12. Successors and Assigns. This Agreement shall be binding on
the parties hereto and their respective successors and assigns; provided,
however, that no Subservicer may assign any of its rights or delegate any of its
duties hereunder without the prior written consent of the Servicer.
13. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability of such provision in any other jurisdiction or the remaining
provisions hereof in any jurisdiction.
14. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
16. Captions. The captions in this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
17. Entire Agreement; Amendments; Waiver. This Agreement
constitutes the entire agreement of the parties on the subject matter addressed
herein and supersedes any other agreement of the parties on such subject matter.
This Agreement may not be amended, and no rights hereunder may be waived, except
by a written document signed by the duly authorized representatives of the
parties. No waiver of any of the provisions of this Agreement shall be deemed to
be or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
[The remainder of this page is left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
AMERICAN EXPRESS CENTURION BANK
By: /s/ L. Xxxxx Xxxxx
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Name: L. Xxxxx Xxxxx
Title: President and Chief Operating Officer
AMERICAN EXPRESS BANK, FSB
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer and Treasurer
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC
By: /s/ Xxxxxxx Xxxx
---------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President and Treasurer
