EXHIBIT 4.4
EXECUTION COPY
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AMERICAN EXPRESS CREDIT ACCOUNT MASTER TRUST
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS BANK, FSB
and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION IV LLC
Dated as of April 16, 2004
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RECEIVABLES PURCHASE AGREEMENT, dated as of April 16, 2004, by and
between AMERICAN EXPRESS BANK, FSB, a federally-chartered savings bank (together
with its permitted successors and assigns, "FSB"), and AMERICAN EXPRESS
RECEIVABLES FINANCING CORPORATION IV LLC, a Delaware limited liability company
(together with its permitted successors and assigns, "RFC IV").
W I T N E S S E T H:
WHEREAS, RFC IV desires to purchase, from time to time, certain
Receivables (hereinafter defined) existing or arising in designated credit or
charge accounts of FSB;
WHEREAS, FSB desires to sell and assign, from time to time, certain
Receivables to RFC IV upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by RFC IV to the Trustee under the terms of the Pooling and
Servicing Agreement and that the Trust created under the Pooling and Servicing
Agreement will issue beneficial interests in the Trust (each capitalized term as
hereinafter defined); and
WHEREAS, FSB agrees that all representations, warranties, covenants and
agreements made by FSB herein with respect to the Accounts and the Receivables
shall also be for the benefit of the Trust, the Trustee and the
Certificateholders (each capitalized term as hereinafter defined).
NOW, THEREFORE, it is hereby agreed by and between FSB and RFC IV as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used herein or in any
certificate, or document made or delivered pursuant hereto, and not defined
herein or therein, shall have the following meanings:
"Account" shall mean (a) each Initial Account, (b) each Additional
Account (but only from and after the Addition Date with respect thereto), (c)
each Related Account, and (d) each Transferred Account. The term "Account" shall
not include Deleted Accounts and any Account all of the Receivables in which are
reassigned to FSB pursuant to Section 6.01 or Section 6.02.
"Account Agreement" shall mean, with respect to an Account, the
agreement between FSB and the Obligor governing the terms and conditions of such
Account, as such agreement may be amended, modified or otherwise changed from
time to time.
"Account Schedule" shall mean a computer file or microfiche list
containing a true and complete list of Accounts, identified by account number,
and setting forth, with respect to each Account other than the Initial Accounts,
the aggregate amount outstanding in such Account (a) on the Distribution Date
immediately succeeding the related Monthly Period (for any Account Schedule
relating to New Accounts) and (b) on the Addition Cut-Off Date (for any Account
Schedule relating to Aggregate Addition Accounts).
"Addition Cut-Off Date" shall mean (a) with respect to New Accounts,
the later of the dates on which such New Accounts are originated or designated,
and (b) with respect to Aggregate Addition Accounts, the date specified as such
in the notice delivered with respect thereto.
"Addition Date" shall mean (a) with respect to New Accounts, the first
Distribution Date following the calendar month in which falls the later of the
dates on which such New Accounts are originated or designated, and (b) with
respect to Aggregate Addition Accounts, the date from and after which such
Aggregate Addition Accounts are included as Accounts pursuant to Subsection
2.02(a)(i).
"Addition Selection Date" shall mean, for each Aggregate Addition
Account, the date specified as such in the notice delivered with respect thereto
pursuant to Subsection 2.02(a).
"Additional Account" shall mean each New Account and each Aggregate
Addition Account.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" shall mean the power to
direct the management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Aggregate Addition Account" means each credit or charge account or
line of credit (if, with respect to the line of credit, the full receivable
balance is not due upon receipt of a monthly billing statement (excluding the
billing statement with respect to the final payment of such balance) and the
line of credit contains an indicator as described in Subsection 2.01(c)),
established pursuant to an Account Agreement between FSB and any Person, which
account or line of credit is designated pursuant to Subsection 2.02(a) to be
included as an Account and is identified on an Account Schedule delivered
pursuant to Sections 2.01 and 2.02.
"Agreement" shall mean this Receivables Purchase Agreement, as the same
may be amended and supplemented from time to time.
"Average Rate" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Business Day" shall mean any day other than (a) a Saturday or Sunday
or (b) any other day on which national banking associations, federal savings
banks or state banking institutions in New York, New York, or any other State in
which the principal executive offices of FSB are located, are authorized or
obligated by law, executive order or governmental decree to be closed.
"Cash Advance Fees" shall mean cash advance transaction fees and cash
advance late fees, if any, as specified in any Account Agreement applicable to
an Account.
"Certificateholder" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Closing Date" shall mean the close of business on April 16, 2004.
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"Collection Account" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Collections" shall mean all payments (including Recoveries and
Insurance Proceeds) received in respect of the Receivables, in the form of cash,
checks, wire transfers, electronic transfers, ATM transfers or any other form of
payment.
"Conveyance" shall have the meaning specified in Subsection 2.01(a).
"Credit Guidelines" shall mean the policies and procedures of FSB, as
such policies and procedures may be amended from time to time, (a) relating to
the operation of its credit or charge business, as the case may be, which
generally are applicable to its portfolio of similar accounts, including the
policies and procedures for determining the creditworthiness of customers and
the extension of credit or charge privileges to customers, and (b) relating to
the maintenance of accounts and collection of related receivables.
"Date of Processing" shall mean, with respect to any transaction or
receipt of Collections, the Business Day after such transaction is first output,
in written form under the Servicer's customary and usual practices, from the
Servicer's computer file of Accounts and accounts comparable to the Accounts
(without regard to the effective date of recordation).
"Debtor Relief Laws" shall mean (a) the United States Bankruptcy Code
and (b) all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, readjustment of debt, marshalling of assets, assignment for the
benefit of creditors and similar debtor relief laws from time to time in effect
in any jurisdiction affecting the rights of creditors generally or the rights of
creditors of banks.
"Defaulted Receivable" shall mean a Principal Receivable which is
charged off as uncollectible in accordance with the Credit Guidelines and the
Servicer's customary and usual servicing procedures for servicing accounts
comparable to the Accounts. A Principal Receivable shall become a Defaulted
Receivable on the Date of Processing on which such Principal Receivable is
recorded as charged-off on the Servicer's computer file of Accounts.
"Deleted Account" shall mean any Removed Account as to which there are
no Receivables arising therein owned by RFC IV.
"Determination Date" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Distribution Date" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Eligible Account" shall mean a credit or charge account or line of
credit (if, with respect to the line of credit, the full receivable balance is
not due upon receipt of a monthly billing statement (excluding the billing
statement with respect to the final payment of such balance) and the line of
credit contains an indicator as described in Subsection 2.01(c)), owned by FSB
which (i) in the case of the Initial Accounts, as of the selection date related
to its date of designation as an "Account" under the Original Pooling Agreement
or (ii) in the case of the Additional Accounts, as of the applicable Addition
Selection Date, in each case, meets the following requirements:
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(a) is a credit or charge account or line of credit (if, with respect
to the line of credit, the full receivable balance is not due upon receipt of a
monthly billing statement (excluding the billing statement with respect to the
final payment of such balance) and the line of credit contains an indicator that
it has been sold as described in Subsection 2.01(c)) in existence and maintained
by American Express Centurion Bank (in cases that arose prior to the Closing
Date) or FSB (in cases that arise on or after the Closing Date);
(b) is payable in United States dollars;
(c) has an Obligor who is not confirmed by American Express Centurion
Bank (in cases that arose prior to the Closing Date) or FSB (in cases that arise
on or after the Closing Date) in its computer files as being involved in a
voluntary or involuntary bankruptcy proceeding;
(d) has an Obligor who has provided, as his or her most recent billing
address, an address located in the United States or its territories or
possessions or Canada or a United States military address; provided, however,
that, with the consent of RFC IV, as of any date of determination, up to 3% of
the Accounts (calculated by number of Accounts) may have Obligors who have
provided, as their billing addresses, addresses located outside of such
jurisdictions;
(e) if such account is a credit card or charge card account, has not
been identified as an account with respect to which a related card has been lost
or stolen;
(f) has not been sold or pledged to any other party;
(g) does not have any receivables that have been sold or pledged by
American Express Centurion Bank (in cases that arose prior to the Closing Date)
or FSB (in cases that arise on or after the Closing Date) to any other party
(except pursuant to the Original Pooling Agreement); and
(h) does not have any receivables that are Defaulted Receivables or
that have been identified by American Express Centurion Bank (in cases that
arose prior to the Closing Date) or FSB (in cases that arise on or after the
Closing Date) as having been incurred as a result of the fraudulent use of a
related credit or charge card.
Notwithstanding the above requirements, Eligible Accounts may include accounts
(I) the receivables of which have been written off or (II) with respect to which
American Express Centurion Bank (in cases that arose prior to the Closing Date)
or FSB (in cases that arise on or after the Closing Date) has confirmed the
related Obligor is bankrupt, in each case as of the selection dates related to
their date of designation as an "Account" under the Original Pooling Agreement
with respect to Initial Accounts and as of the related Addition Selection Date
with respect to Additional Accounts; provided, however, that (1) the balance of
all receivables included in such accounts is reflected on the books and records
of FSB (and is treated for purposes of this Agreement) as "zero," (b) borrowing
and charging privileges with respect to all such accounts have been canceled in
accordance with the Credit Guidelines applicable thereto and will not be
reinstated, and (c) any recoveries, insurance proceeds or other amounts realized
on such accounts are retained by FSB.
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all material respects with all
Requirements of Law applicable to FSB and pursuant to an Account Agreement that
complies in all material respects with all Requirements of Law applicable to
FSB, in either case, the failure to comply with which would have a material
adverse effect on RFC IV;
(c) with respect to which all material consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the execution, delivery and performance by FSB of
the Account Agreement pursuant to which such Receivable was created, have been
duly obtained, effected or given and are in full force and effect;
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(d) as to which, at the time of the sale of such Receivable to RFC IV,
FSB has good and marketable title thereto, free and clear of all Liens (other
than any Lien for municipal or other local taxes of FSB if such taxes are not
then due and payable or if FSB is then contesting the validity thereof in good
faith by appropriate proceedings and has set aside on its books adequate
reserves with respect thereto);
(e) which has been the subject of a valid sale and assignment from FSB
to RFC IV of all FSB's right, title and interest therein (including any proceeds
thereof);
(f) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such Obligor in accordance with its terms,
except as such enforceability may be limited by applicable Debtor Relief Laws
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(g) which, at the time of the sale of such Receivable to RFC IV, has
not been waived or modified except as permitted in accordance with the Credit
Guidelines and which waiver or modification is reflected in FSB's computer file
of accounts;
(h) which, at the time of the sale of such Receivable to RFC IV, is not
subject to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the Obligor,
other than defenses arising out of applicable Debtor Relief Laws;
(i) as to which, at the time of the sale of such Receivable to RFC IV,
FSB has satisfied all its obligations required to be satisfied by such time;
(j) as to which, at the time of the sale of such Receivable to RFC IV,
FSB has not taken any action which would impair, or omitted to take any action
the omission of which would impair, the rights of RFC IV therein; and
(k) which constitutes either an "account" or a "general intangible"
under and as defined in Article 9 of the UCC as then in effect in any state
where the filing of a financing statement is then required to perfect RFC IV's
interest in such Receivable and the proceeds thereof.
"Finance Charge Receivables" shall mean Receivables created in respect
of Periodic Rate Finance Charges, Cash Advance Fees, annual membership fees and
annual service charges, Late Fees, Overlimit Fees, and all other incidental and
miscellaneous fees and charges.
"FSB" shall have the meaning specified in the initial paragraph of this
Agreement.
"Governmental Authority" shall mean 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.
"Group" shall have the meaning specified in the Pooling and Servicing
Agreement.
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"Initial Account" shall mean each credit or charge account or line of
credit (if, with respect to the line of credit, the full receivable balance is
not due upon receipt of a monthly billing statement (excluding the billing
statement with respect to the final payment of such balance) and the line of
credit contains an indicator as described in Subsection 2.01(c)) established
pursuant to an Account Agreement between FSB and any Person, which account or
line of credit is identified in the Account Schedule delivered to RFC IV by FSB
on the Closing Date.
"Initial Cut-Off Date" shall mean the close of business on April 16,
2004.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"Insurance Proceeds" shall mean any amounts received pursuant to the
payment of benefits under any credit life insurance policies, credit disability
insurance policies or unemployment insurance policies covering any Obligor with
respect to Receivables under such Obligor's Account.
"Issuer Rate Fees" shall mean all issuer rate fees payable to FSB in
connection with cardholder charges for goods or services with respect to the
Receivables, the amount of which shall be calculated as provided in Subsection
5.01(f).
"Late Fees" shall have the meaning specified in the Account Agreement
applicable to each Account for late fees or similar terms.
"Lien" shall mean any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, equity interest,
encumbrance, lien (statutory or other), preference, participation interest,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including any conditional sale or other title retention
agreement, or any financing lease having substantially the same economic effect
as any of the foregoing; provided, however, that the lien created in favor of
the Trustee under the Original Pooling Agreement shall not be deemed to
constitute a Lien.
"Monthly Period" shall mean, with respect to each Distribution Date,
the period (a) from and including the second day following the last day of the
seventh billing cycle applicable to the Accounts ending during the second
preceding calendar month and (b) to and including the day following the last day
of the seventh billing cycle applicable to the Accounts ending in the calendar
month immediately preceding the calendar month in which such Distribution Date
shall occur.
"New Account" shall mean each credit or charge account or line of
credit (if, with respect to the line of credit, the full receivable balance is
not due upon receipt of a monthly billing statement (excluding the billing
statement with respect to the final payment of such balance) and the line of
credit contains an indicator as described in Subsection 2.01(c)) established
pursuant to an Account Agreement between FSB and any Person, which account or
line of credit is designated pursuant to Subsection 2.02(b) to be included as an
Account and is identified on an Account Schedule delivered pursuant to Sections
2.01 and 2.02.
"Obligor" shall mean, with respect to any Account, the Person or
Persons obligated to make payments with respect to such Account, including any
guarantor thereof but excluding any merchant.
"Officer's Certificate" shall mean a certificate delivered to RFC IV
signed by any Vice President or more senior officer of FSB.
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"Original Pooling Agreement" shall have the meaning specified in the
Pooling and Servicing Agreement.
"Overlimit Fees" shall have the meaning specified in the Account
Agreement applicable to each Account for overlimit fees or similar terms if such
fees are provided for with respect to such Account.
"Pay-Out Event" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Periodic Rate Finance Charges" shall have the meaning specified in the
Account Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any person or entity, including any individual,
corporation, limited liability company, partnership, limited liability
partnership, limited partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Authority, or other
entity of any nature.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement, dated as of May 16, 1996, as amended and restated as of April 16,
2004, among American Express Receivables Financing Corporation II, American
Express Receivables Financing Corporation III LLC and RFC IV, as Transferors,
American Express Travel Related Services Company, Inc., as Servicer, and The
Bank of New York, as Trustee, as amended and supplemented from time to time.
"Portfolio Yield" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Principal Receivables" shall mean all Receivables other than Finance
Charge Receivables. In calculating the aggregate amount of Principal Receivables
on any day, the amount of Principal Receivables shall be reduced by the
aggregate amount of credit balances in the Accounts on such day.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Price" shall have the meaning specified in Subsection
3.01(a).
"Purchase Price Adjustment" shall have the meaning specified in Section
3.02.
"Purchase Price Payment Date" shall have the meaning specified in
Subsection 3.01(a).
"Purchased Assets" shall have the meaning specified in Subsection
2.01(a).
"Rating Agency" shall mean the nationally-recognized statistical rating
agency or agencies, if any, selected by RFC IV and the other Transferors to rate
any securities issued by the Trust.
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"Receivables" shall mean all amounts shown on FSB's records as amounts
payable by Obligors on any Account from time to time, including amounts payable
for Principal Receivables and Finance Charge Receivables.
"Recoveries" shall mean all amounts received with respect to
Receivables which have previously been charged-off.
"Reinvestment Event" shall have the meaning specified in the Pooling
and Servicing Agreement.
"Related Account" shall mean an Account with respect to which a new
account number has been issued by FSB (a)(i) resulting from a lost or stolen
credit or charge card relating to such Account (if such Account is a credit or
charge card account) or (ii) under circumstances not requiring the standard
application and credit evaluation procedures under the Credit Guidelines
applicable to such Account, and (b) that can be traced or identified by
reference to or by way of the Account Schedule and the computer or other records
of FSB.
"Removed Account" shall mean any Account as to which FSB has received
notice from the Servicer that such Account is a "Removed Account" as defined in
the Pooling and Servicing Agreement.
"Requirements of Law" shall mean any law, treaty, rule or regulation,
or determination of an arbitrator or Governmental Authority, whether federal,
state or local (including, without limitation, usury laws, the Federal Truth in
Lending Act and Regulation B and Regulation Z of the Board of Governors of the
Federal Reserve System), and, when used with respect to any Person, the
certificate of incorporation and by-laws or other organizational or governing
documents of such Person.
"RFC IV" shall have the meaning specified in the initial paragraph of
this Agreement.
"Servicer" shall mean the entity acting as Servicer under the Pooling
and Servicing Agreement.
"Stop Date" shall have the meaning specified in Subsection 2.03(a).
"Supplemental Conveyance" shall have the meaning specified in
Subsection 2.02(b)(v).
"Transfer Date" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Transfer Restriction Event" shall mean that FSB is unable for any
reason to transfer Receivables to RFC IV in accordance with the provisions of
this Agreement, including by reason of the application of the provisions in
Section 8.02 or any order of any Governmental Authority.
"Transferors" shall mean the entities acting as Transferors under the
Pooling and Servicing Agreement.
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"Transferred Account" shall mean each credit or charge account or line
of credit (if, with respect to the line of credit, the full receivable balance
is not due upon receipt of a monthly billing statement (excluding the billing
statement with respect to the final payment of such balance) and the line of
credit contains an indicator as described in Subsection 2.01(c)) into which an
Account shall be transferred provided that (a) such transfer was made in
accordance with the Credit Guidelines and (b) such account or line of credit can
be traced or identified by reference to or by way of the Account Schedule and
the computer or other records of FSB.
"Trust" shall mean the American Express Credit Account Master Trust,
heretofore created and continued by the Pooling and Servicing Agreement.
"Trustee" shall mean the Trustee under the Pooling and Servicing
Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
Section 1.02. Other Definitional Provisions.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; and Section, Subsection, Schedule
and Exhibit references contained in this Agreement are references to Sections,
Subsections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) In consideration of the payment of the Purchase Price as provided
herein, FSB does hereby sell, transfer, assign, set over and otherwise convey to
RFC IV (collectively, the "Conveyance"), without recourse except as provided
herein, all of its right, title and interest, whether now owned or hereafter
acquired, in, to and under the Receivables existing at the close of business on
the Initial Cut-Off Date, in the case of Receivables arising in the Initial
Accounts (including Related Accounts and Transferred Accounts with respect to
such Initial Accounts), and at the close of business on the related Addition
Cut-Off Date, in the case of Receivables arising in the Additional Accounts
(including Related Accounts and Transferred Accounts with respect to such
Additional Accounts), and in each case thereafter created from time to time in
such Accounts, all Insurance Proceeds, Issuer Rate Fees and Recoveries allocable
to such Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including "proceeds" as defined in the UCC) thereof (collectively, the
"Purchased Assets"). The Receivables existing in the Initial Accounts at the
close of business on the Initial Cut-Off Date and thereafter arising in the
Initial Accounts on or prior to the Closing Date, and the related Purchased
Assets, shall be sold by FSB and purchased by RFC IV on the Closing Date.
Receivables arising after the Closing Date in the Initial Accounts and the
related Purchased Assets shall be sold by FSB and purchased by RFC IV on the
date such Receivables arise. The Receivables existing in Additional Accounts at
the close of business on the related Addition Cut-Off Date and thereafter
arising in such Additional Accounts on or prior to the related Addition Date,
and the related Purchased Assets, shall be sold by FSB and purchased by RFC IV
on the related Addition Date. Receivables arising after such Addition Date in
such Additional Accounts and the related Purchased Assets shall be sold by FSB
and purchased by RFC IV on the date such Receivables arise.
(b) FSB shall (i) record and file, at its own expense, any financing
statements (and amendments with respect to such financing statements when
applicable) with respect to the Purchased Assets meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the Conveyance of such Purchased Assets
from FSB to RFC IV, (ii) cause such financing statements and amendments to name
FSB, as seller, and RFC IV, as purchaser, of the Purchased Assets and (iii)
deliver a file-stamped copy of such financing statements or amendments or other
evidence of such filings to RFC IV as soon as is practicable after filing.
(c) FSB shall, at its own expense, (i) on or prior to (x) the Closing
Date, in the case of Initial Accounts, and (y) the applicable Addition Date, in
the case of Additional Accounts, indicate in its books and records (including
its computer files) that Receivables created in connection with such Accounts
and the related Purchased Assets have been sold to RFC IV in accordance with
this Agreement and have been conveyed by RFC IV to the Trustee pursuant to the
Pooling and Servicing Agreement, and (ii) on or prior to (x) the Closing Date,
in the case of Initial Accounts, and (y) the applicable Addition Date, in the
case of Additional Accounts, deliver to RFC IV an Account Schedule (provided,
however, that such Account Schedule shall be provided in respect of New Accounts
on the Distribution Date immediately succeeding the related Monthly Period
during which their respective Addition Dates occur) containing a true and
complete list of all such Accounts. FSB shall not alter the indication
referenced in clause (i) of this paragraph with respect to any Account during
the term of this Agreement unless and until such Account is no longer an Account
or FSB has taken such action as is necessary or advisable to cause the interest
of RFC IV in the Purchased Assets to continue to be perfected and of first
priority. The Account Schedules, as supplemented and amended, collectively shall
be marked as Schedule 1 to this Agreement, shall be incorporated into and made a
part of this Agreement and shall be updated by FSB on each Addition Date (or
with respect to New Accounts, on the Distribution Date immediately succeeding
the related Monthly Period during which their respective Addition Dates occur),
but not later than on a semi-annual basis to include any new Related Accounts
and Transferred Accounts.
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(d) The parties hereto intend that the conveyance of FSB's right, title
and interest in and to the Purchased Assets shall constitute an absolute sale,
conveying good title free and clear of any liens, claims, encumbrances or rights
of others, from FSB to RFC IV. It is the intention of the parties hereto that
the arrangements with respect to the Purchased Assets shall constitute a
purchase and sale of such Purchased Assets and not a loan, including for
accounting purposes. In the event, however, that it were to be determined that
the transactions evidenced hereby constitute a loan and not a purchase and sale,
it is the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law, and that FSB shall be deemed to have
granted, and FSB does hereby grant, to RFC IV a first priority perfected
security interest in all of FSB's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Purchased Assets to secure the
obligations of FSB hereunder.
(e) To the extent that FSB retains any interest in the Purchased
Assets, FSB hereby grants to the Trustee a security interest in all of FSB's
right, title and interest, whether now owned or hereafter acquired, in, to and
under the Purchased Assets, to secure the performance of all of the obligations
of FSB hereunder. With respect to such security interest and such collateral,
the Trustee shall have all of the rights that it has under the Pooling and
Servicing Agreement. The Trustee shall also have all of the rights of a secured
creditor under the UCC.
Section 2.02. Addition of Accounts.
(a) If (i) RFC IV is required, pursuant to Section 2.09(a) of the
Pooling and Servicing Agreement, to designate additional accounts to the Trust,
or (ii) RFC IV elects, pursuant to Section 2.09(b) of the Pooling and Servicing
Agreement, to designate additional accounts to the Trust, then in either case
RFC IV, at its option, may give written notice thereof to FSB; provided,
however, that such notice shall be provided on or before the eighth (8th)
Business Day immediately preceding the related addition date. Upon receipt of
such notice and on or prior to such addition date, FSB shall designate
sufficient Eligible Accounts as Aggregate Addition Accounts and shall sell to
RFC IV the Purchased Assets related to such Aggregate Addition Accounts. In
addition, at its option and with the consent of RFC IV, FSB may designate
Eligible Accounts as Aggregate Addition Accounts and sell to RFC IV the
Purchased Assets related to such Aggregate Addition Accounts.
(b) At its option and with the consent of RFC IV, FSB may designate
Eligible Accounts as New Accounts and sell to RFC IV the Purchased Assets
related to such New Accounts. FSB or RFC IV, each at its option and by written
notice to the other party at least ten (10) days in advance, may elect at any
time to terminate the inclusion of new accounts which would otherwise be New
Accounts as of any Business Day, to suspend any such inclusion as of any
Business Day, or to resume any such inclusion as of any Business Day.
11
(c) On the Addition Date with respect to any designation of Additional
Accounts, such Additional Accounts shall become Accounts, and RFC IV shall
purchase FSB's right, title and interest in, to and under the Receivables in
such Additional Accounts and the related Purchased Assets as provided in Section
2.01, subject to the satisfaction of the following conditions on such Addition
Date:
(i) as of the Addition Selection Date, such Additional
Accounts shall be Eligible Accounts;
(ii) FSB shall have delivered to RFC IV copies of UCC
financing statements covering such Additional Accounts, if necessary to
perfect RFC IV's interest in the Receivables arising therein and the
related Purchased Assets;
(iii) FSB shall have delivered to RFC IV all Collections with
respect to such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Addition Cut-Off Date and the Addition
Date, no Insolvency Event with respect to FSB shall have occurred nor
shall the sale of the Receivables arising in the Additional Accounts
and the related Purchased Assets to RFC IV have been made in
contemplation of the occurrence thereof;
(v) in the case of Aggregate Addition Accounts, such addition
will not have a material adverse effect on RFC IV;
(vi) FSB shall have delivered to RFC IV an Officer's
Certificate of FSB, dated the Addition Date, confirming, to the extent
applicable and in FSB's reasonable belief, the items set forth in
clauses (i) through (v) above;
(vii) in the case of New Accounts, such addition will not
cause a Pay-Out Event or a Reinvestment Event under the Pooling and
Servicing Agreement;
(viii) FSB shall have indicated in its computer files that
Receivables created in connection with such Additional Accounts and the
related Purchased Assets have been sold to RFC IV and, in the case of
Aggregate Addition Accounts, shall have delivered to RFC IV the Account
Schedule with respect to such Aggregate Addition Accounts; and
(ix) FSB and RFC IV shall have entered into a duly executed,
written assignment, substantially in the form of Exhibit A (the
"Supplemental Conveyance").
12
Section 2.03. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then FSB shall stop
selling to RFC IV Principal Receivables arising in such Removed Account
effective on the Business Day (the "Stop Date") after the date such Account
becomes a Removed Account. Notwithstanding the cessation of the sale to RFC IV
of additional Principal Receivables arising in such Removed Account, Principal
Receivables sold to RFC IV prior to the Stop Date, Collections in respect of
such Principal Receivables, Finance Charge Receivables whenever created that
accrue in respect of such Principal Receivables, Collections in respect of such
Finance Charge Receivables, and Issuer Rate Fees allocable to the foregoing
shall continue to be property of RFC IV available for transfer by RFC IV to the
Trustee pursuant to the Pooling and Servicing Agreement. To the extent that it
is not clear to FSB whether collections relate to a Receivable that was sold to
RFC IV or to a receivable that FSB did not sell to RFC IV, FSB shall allocate
payments on each such Removed Account with respect to the principal balance of
such Removed Account first to the oldest principal balance of such Removed
Account.
(b) On and after the Stop Date for a Removed Account, FSB may xxxx its
books and records to indicate that such Account is a Removed Account, but FSB
shall not (i) alter the indication referenced in clause (i) of Subsection
2.01(c) with respect to such Removed Account unless and until such Account
becomes a Deleted Account or FSB has taken such action as is necessary or
advisable to cause the interest of RFC IV in the Purchased Assets to continue to
be perfected and of first priority, or (ii) delete such Removed Account from
Schedule 1 hereto or any Account Schedule.
(c) Once a Removed Account becomes a Deleted Account, FSB shall
promptly delete such Deleted Account from Schedule 1 hereto and shall indicate
in its computer files that such Deleted Account is no longer an Account.
[END OF ARTICLE II]
13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) The "Purchase Price" for the Receivables in the Initial Accounts
existing at the close of business on the Initial Cut-Off Date, and the related
Purchased Assets, that are conveyed to RFC IV under this Agreement shall be
payable on April 19, 2004, in an amount equal to the fair market value of such
Receivables and the related Purchased Assets as mutually agreed upon by FSB and
RFC IV. This computation of initial purchase price shall assume no reinvestment
in new Receivables. The Purchase Price for the Receivables (including
Receivables in Additional Accounts) and the related Purchased Assets conveyed to
RFC IV under this Agreement which come into existence after the Initial Cut-Off
Date (i) shall be payable on a date (the "Purchase Price Payment Date") mutually
agreed to by FSB and RFC IV, but no later than the 15th calendar day (or, if
such day is not a Business Day, the next following Business Day) following the
calendar month in which such Receivables and the related Purchased Assets are
conveyed by FSB to RFC IV and (ii) shall be an amount equal to 100% of the
aggregate balance of the Principal Receivables so conveyed, adjusted to reflect
such factors, if any, as FSB and RFC IV mutually agree will result in a Purchase
Price determined to be the fair market value of such Principal Receivables and
the related Purchased Assets. FSB hereby acknowledges, and agrees to perform in
accordance with, Section 4.03(c) of the Pooling and Servicing Agreement and the
related instructions of RFC IV.
(b) Notwithstanding any other provision of this Agreement, FSB shall
not be obligated to continue to sell Receivables or other Purchased Assets to
RFC IV to the extent that FSB is not paid the Purchase Price therefor as
provided herein.
Section 3.02. Adjustments to Purchase Price. The Purchase Price shall
be reduced on the Purchase Price Payment Date (a "Purchase Price Adjustment")
with respect to any Receivable previously conveyed to RFC IV by FSB which is
reduced by FSB or the Servicer because of a rebate, refund, or billing error to
an Obligor, other than by reason of a Servicer error. The amount of such
reduction shall equal the reduction in the principal balance of such Receivable
resulting from the occurrence of such event. In the event that a reduction
pursuant to this Section 3.02 causes the Purchase Price to be a negative number,
FSB agrees that, on the Purchase Price Payment Date, FSB shall pay or cause to
be paid to RFC IV an amount equal to the amount by which the Purchase Price
Adjustment exceeds the unadjusted Purchase Price; provided, however, that if the
reduction relating to such Purchase Price Adjustment also gives rise to an
obligation on the part of RFC IV as Transferor to make a deposit in the Special
Funding Account pursuant to Section 3.09 of the Pooling and Servicing Agreement,
then FSB and RFC IV hereby agree that the date that RFC IV is required to make
such deposit pursuant to Section 3.09 of the Pooling and Servicing Agreement
shall be a Purchase Price Payment Date.
Section 3.03. Use of Name, Logo and Marks. FSB does hereby grant to RFC
IV a non-exclusive license to use the name "American Express Bank, FSB" and all
related identifying trade or service marks, signs, symbols, logos, designs,
servicing software, customer lists and other intangibles in connection with the
servicing of the Receivables purchased hereunder. The license granted shall be
co-extensive with the term of the Agreement.
[END OF ARTICLE III]
14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of FSB Relating to FSB.
(a) Representations and Warranties. FSB hereby represents and warrants
to, and agrees with, RFC IV as of the Closing Date and on each Addition Date,
that:
(i) Organization and Good Standing. FSB is a
federally-chartered savings bank validly existing under the laws of the
United States of America, and has, in all material respects, full power
and authority to own its properties and conduct its business as
presently owned or conducted, and to execute, deliver and perform its
obligations under this Agreement.
(ii) Due Qualification. FSB is duly qualified to do business
and is in good standing as a foreign corporation or other entity and
has obtained all necessary licenses and approvals, in each jurisdiction
in which failure to so qualify or to obtain such licenses and approvals
would have a material adverse effect on this Agreement or the
transactions contemplated hereby or on the ability of FSB to perform
its obligations under this Agreement.
(iii) Due Authorization. The execution and delivery by FSB of
this Agreement and any other document or instrument delivered by FSB
pursuant hereto, including any Supplemental Conveyance, to which FSB is
a party and the consummation by FSB of the transactions provided for in
this Agreement and any such Supplemental Conveyance, have been duly
authorized by FSB by all necessary action on the part of FSB.
(iv) No Conflict or Violation. The execution and delivery by
FSB of this Agreement, the performance by FSB of the transactions
contemplated by this Agreement and the fulfillment by FSB of the terms
of this Agreement applicable to FSB, will not conflict with or violate
any Requirements of Law applicable to FSB 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 FSB is a party or by which it or its
properties are bound.
(v) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of FSB, threatened, against FSB
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of FSB, would
materially and adversely affect the performance by FSB of its
obligations under this Agreement or (iv) seeking any determination or
ruling that, in the reasonable judgment of FSB, would materially and
adversely affect the validity or enforceability of this Agreement.
(vi) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by FSB in
connection with the execution and delivery by FSB of this Agreement and
the performance by FSB of the transactions contemplated by this
Agreement have been duly obtained, effected or given and are in full
force and effect.
15
(b) Notice of Breach. The representations and warranties set forth in
this Section 4.01 shall survive the sale of the Purchased Assets to RFC IV. Upon
discovery by FSB or RFC IV of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give written notice to
the other party and the Trustee within three (3) Business Days following such
discovery.
Section 4.02. Representations and Warranties of FSB Relating to the
Agreement and the Receivables.
(a) Representations and Warranties. FSB hereby represents and
warrants to RFC IV as of the Closing Date with respect to the Initial
Accounts (and the Receivables arising therein), and as of the related
Addition Date with respect to Additional Accounts (and the Receivables
arising therein), that:
(i) this Agreement and, in the case of Additional Accounts,
the related Supplemental Conveyance, each constitutes a legal, valid
and binding obligation of FSB enforceable against FSB in accordance
with its terms, except as such enforceability may be limited by
applicable Debtor Relief Laws or general principles of equity;
(ii) as of the Initial Cut-Off Date with respect to the
Initial Accounts (and the Receivables arising thereunder), as of the
related Addition Cut-Off Date with respect to Aggregate Addition
Accounts and as of the Distribution Date immediately succeeding the
Monthly Period in which New Accounts were designated with respect to
such New Accounts, Schedule 1 to this Agreement, as supplemented to
such date, is an accurate and complete listing in all material respects
of all the Accounts as of such applicable date, and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of such applicable date;
(iii) each Receivable conveyed to RFC IV has been conveyed to
RFC IV free and clear of any Lien (other than any Lien for municipal or
other local taxes of FSB if such taxes are not then due and payable or
if FSB is then contesting the validity thereof in good faith by
appropriate proceedings and has set aside on its books adequate
reserves with respect thereto);
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by FSB in connection with the
conveyance of Receivables to RFC IV have been duly obtained, effected
or given and are in full force and effect;
(v) this Agreement and, in the case of Additional Accounts,
the related Supplemental Conveyance, constitutes a valid sale to RFC IV
of all right, title and interest of FSB in the Purchased Assets, and
such sale is perfected under the UCC;
(vi) on the selection date related to its date of designation
as an "Account" under the Original Pooling Agreement, with respect to
each Initial Account, and on the applicable Addition Selection Date,
with respect to each Additional Account, each such Account is an
Eligible Account;
16
(vii) on the selection date related to its date of designation
as an Account, with respect to each Initial Account, and on the
applicable Addition Selection Date, with respect to each Additional
Account, each Receivable contained in such Account on such applicable
date and sold to RFC IV by FSB is an Eligible Receivable;
(viii) as of the date of the creation of any new Receivable
sold to RFC IV by FSB, such Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by FSB to be materially
adverse to the interests of RFC IV or its transferees have been used in
selecting such Accounts.
(b) Notice of Breach. The representations and warranties set forth in
this Section 4.02 shall survive the sale of the Purchased Assets to RFC IV. Upon
discovery by either FSB or RFC IV of a breach of any of the representations and
warranties set forth in this Section 4.02, the party discovering such breach
shall give written notice to the other party and the Trustee within three (3)
Business Days following such discovery. FSB hereby acknowledges that RFC IV
intends to rely on the representations hereunder in connection with
representations made by RFC IV to secured parties, assignees or subsequent
transferees, including transfers made by RFC IV to the Trustee pursuant to the
Pooling and Servicing Agreement, and FSB hereby consents to such reliance.
Section 4.03. Representations and Warranties of RFC IV. As of the
Closing Date and each Addition Date, RFC IV hereby represents and warrants to,
and agrees with, FSB that:
(a) Organization and Good Standing. RFC IV is a limited liability
company duly formed and validly existing under the laws of the State of
Delaware, and has, in all material respects, full power and authority to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement.
(b) Due Authorization. The execution and delivery by RFC IV of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance, to which RFC IV is a party, and the
consummation by RFC IV of the transactions provided for in this Agreement and
any such Supplemental Conveyance, have been duly authorized by RFC IV by all
necessary company action on the part of RFC IV.
(c) No Conflict or Violation. The execution and delivery by RFC IV of
this Agreement, the performance by RFC IV of the transactions contemplated by
this Agreement and the fulfillment by RFC IV of the terms of this Agreement
applicable to RFC IV, will not conflict with or violate any Requirements of Law
applicable to RFC IV 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 RFC IV is a party or by
which it or any of its properties are bound.
(d) No Proceedings. There are no Proceedings or investigations pending
or, to the best knowledge of RFC IV, threatened, against RFC IV, before any
Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of RFC IV, would materially and adversely affect the
performance by RFC IV of its obligations under this Agreement or (iv) seeking
any determination or ruling that, in the reasonable judgment of RFC IV, would
materially and adversely affect the validity or enforceability of this
Agreement.
17
(e) All Consents. All authorizations, consents, orders or approvals of
or registrations or declarations with any Governmental Authority required to be
obtained, effected or given by RFC IV in connection with the execution and
delivery by RFC IV of this Agreement and the performance by RFC IV of the
transactions contemplated by this Agreement have been duly obtained, effected or
given and are in full force and effect.
The representations and warranties set forth in this Section
4.03 shall survive the sale of the Purchased Assets to RFC IV. Upon discovery by
FSB or RFC IV of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give written notice to the
other party and the Trustee within three (3) Business Days following such
discovery.
[END OF ARTICLE IV]
18
ARTICLE V
COVENANTS
Section 5.01. COVENANTS OF FSB. FSB hereby covenants and agrees with
RFC IV as follows:
(a) Receivables Not To Be Evidenced by Instruments. Except in
connection with its enforcement or collection of an Account, FSB will take no
action to cause any Receivable sold to RFC IV hereunder to be evidenced by any
instrument (as defined in the UCC), and if any Receivable is so evidenced as a
result of any action by FSB, it shall be deemed to be a Receivable described in
Subsection 6.01(a) and shall be reassigned to FSB in accordance with Subsection
6.01(b).
(b) Security Interests. Except for the conveyances hereunder, FSB will
not sell, pledge, assign or transfer to any other Person, or take any other
action inconsistent with RFC IV's ownership of, the Purchased Assets, or grant,
create, incur, assume or suffer to exist any Lien arising through or under FSB
on any Purchased Asset or any interest therein (other than any Lien for
municipal or other local taxes of FSB if such taxes are not then due and payable
or if FSB is then contesting the validity thereof in good faith by appropriate
proceedings and has set aside on its books adequate reserves with respect
thereto), and FSB shall not claim any ownership interest in any Purchased Asset
and shall defend the right, title and interest of RFC IV in, to and under the
Purchased Assets against all claims of third parties claiming through or under
FSB.
(c) Account Allocations. If a Transfer Restriction Event occurs, FSB
agrees (except as prohibited by any such order or any Requirement of Law) to
allocate and pay to RFC IV, after the date of such Transfer Restriction Event,
all Collections with respect to Principal Receivables previously sold to RFC IV.
To the extent that it is not clear to FSB whether collections relate to a
Receivable that was sold to RFC IV or to a receivable that FSB is unable to sell
to RFC IV, FSB agrees that it shall allocate payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account. Notwithstanding any cessation of the sale to RFC IV of
additional Principal Receivables, Principal Receivables sold to RFC IV prior to
the occurrence of the Transfer Restriction Event, Collections in respect of such
Principal Receivables, Finance Charge Receivables whenever created that accrue
in respect of such Principal Receivables, Collections in respect of such Finance
Charge Receivables, and Issuer Rate Fees allocable to the foregoing shall
continue to be property of RFC IV available for transfer by RFC IV to the
Trustee pursuant to the Pooling and Servicing Agreement.
(d) Delivery of Collections. In the event that FSB receives Collections
or any other amounts in respect of the Purchased Assets sold to RFC IV
hereunder, FSB agrees to pay to RFC IV (or to the Servicer or the Trustee if RFC
IV so directs) all such Collections and other amounts promptly after receipt
thereof.
(e) Notice of Liens. FSB shall notify RFC IV promptly after becoming
aware of any Lien arising through or under FSB on any Purchased Asset other than
the conveyances hereunder.
19
(f) Issuer Rate Fees. On each Distribution Date, FSB shall pay to RFC
IV, in immediately available funds, the amount of Issuer Rate Fees allocable to
the Receivables. Such amount of Issuer Rate Fees shall be equal to the sum of
(i) the product of (A) the rate at which issuer rate fees accrued to FSB during
the second preceding Monthly Period on credit accounts owned by FSB, multiplied
by (B) a fraction, (I) the numerator of which is the aggregate amount of
cardholder charges in all credit accounts owned by FSB, excluding balance
transfer transactions, purchases made by convenience checks, cash advances,
certain ineligible products and services offered by American Express Travel
Related Services Company, Inc. or any affiliate or subsidiary thereof, and all
other transactions on which issuer rate fees did not accrue to FSB, in each case
with respect to such Monthly Period, and (II) the denominator of which is the
aggregate amount of cardholder charges in all credit accounts owned by FSB with
respect to such Monthly Period, multiplied by (C) new Principal Receivables that
arose during such Monthly Period in the Accounts that constitute credit
accounts, plus (ii) the product of (A) the rate at which issuer rate fees
accrued to FSB during the second preceding Monthly Period on charge accounts or
lines of credit owned by FSB, multiplied by (B) a fraction, (I) the numerator of
which is the aggregate amount of obligor charges on all charge accounts or lines
of credit owned by FSB, excluding balance transfer transactions, purchases made
by convenience checks, cash advances, certain ineligible products and services
offered by American Express Travel Related Services Company, Inc. or any
affiliate or subsidiary thereof, and all other transactions on which issuer rate
fees did not accrue to FSB, in each case with respect to such Monthly Period,
and (II) the denominator of which is the aggregate amount of obligor charges on
all charge accounts or lines of credit owned by FSB with respect to such Monthly
Period, multiplied by (C) new Principal Receivables that arose during such
Monthly Period in the Accounts that constitute charge accounts or lines of
credit.
(g) Documentation of Transfer. FSB shall timely file in all appropriate
filing offices the documents which are necessary or advisable to perfect and
maintain the perfection of the sale of the Purchased Assets to RFC IV.
(h) Periodic Rate Finance Charges. Except (i) as otherwise required by
any Requirements of Law or (ii) as is deemed by FSB to be necessary in order for
it to maintain its credit or charge business or a program operated by such
credit or charge business on a competitive basis based on a good faith
assessment by it of the nature of the competition with respect to such credit or
charge business or such program, FSB shall not at any time reduce the annual
percentage rate of the Periodic Rate Finance Charges assessed on the Receivables
or take any other action with respect to any of the Accounts if, as a result of
any such action, FSB's reasonable expectation is that such action will cause a
Pay-Out Event or a Reinvestment Event to occur under the Pooling and Servicing
Agreement based on the insufficiency of Portfolio Yield or any similar test. In
addition, except as otherwise required by any Requirements of Law, FSB shall not
at any time reduce the annual percentage rate of the Periodic Rate Finance
Charges assessed on the Receivables or take any other action with respect to any
of the Accounts if, as a result of any such action, FSB's reasonable expectation
is that such action will cause the Portfolio Yield under the Pooling and
Servicing Agreement to be less than the then-current highest Average Rate for
any Group.
(i) Account Agreements and Guidelines. Subject to compliance with all
Requirements of Law and paragraph (h) above, FSB may change the terms and
provisions of the Account Agreements or the Credit Guidelines applicable to the
Accounts in any respect (including the calculation of the amount or the timing
of charge-offs and the Periodic Rate Finance Charges to be assessed thereon).
Notwithstanding the above, unless required by Requirements of Law or as
permitted by paragraph (h) above, FSB will not take any action with respect to
such Account Agreements or such Credit Guidelines which, at the time of such
action, FSB reasonably believes will have a material adverse effect on RFC IV.
20
(j) Name and Type and Jurisdiction of Organization. FSB shall not
change its name or its type or jurisdiction of organization without previously
having delivered to RFC IV an opinion of counsel to the effect that all actions
have been taken, and all filings have been made, as are necessary to continue
and maintain the first-priority perfected ownership interest of RFC IV in the
Purchased Assets.
(k) Annual Opinion. On or before March 31st of each calendar year,
commencing March 31, 2005, FSB shall deliver to RFC IV, with a copy to the
Trustee, an opinion of counsel to the effect that (i) no further action with
respect to the recording or filing of any financing statements, any amendments
to financing statements, or any other documents or filings is then necessary to
perfect the ownership interest of RFC IV in the Purchased Assets, and (ii) no
further action with respect to the recording or filing of any financing
statements, any amendments to financing statements, or any other documents or
filings will be necessary prior to March 31st of the next calendar year to
perfect the ownership interest of RFC IV in the Purchased Assets or stating what
such filings will be necessary prior to such March 31st.
[END OF ARTICLE V]
21
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under Subsection
4.02(a)(ii), (iii), (iv), (vi), (vii) or (viii) is not true and correct in any
material respect as of the date specified therein with respect to any Receivable
or the related Account and as a result of such breach RFC IV is required under
Subsection 2.05(a) of the Pooling and Servicing Agreement to accept reassignment
of such Receivables previously sold by FSB to RFC IV pursuant to this Agreement,
FSB shall accept reassignment of such Receivables on the terms and conditions
set forth in Subsection 6.01(b).
(b) FSB shall accept reassignment of any Receivables described in
Subsection 6.01(a) from RFC IV on the date on which such Receivables are
reassigned to RFC IV pursuant to Subsection 2.05(a) of the Pooling and Servicing
Agreement, and shall pay for such reassigned Receivables by paying to RFC IV in
immediately available funds an amount equal to the unpaid balance of such
Receivables. Upon reassignment of such Receivables, RFC IV shall automatically
and without further action sell, transfer, assign, set-over and otherwise convey
to FSB, without recourse, representation or warranty, all the right, title and
interest of RFC IV in and to such Receivables, all Insurance Proceeds, Issuer
Rate Fees and Recoveries allocable to such Receivables, all monies due or to
become due and all amounts received or receivable with respect thereto, all
Collections with respect thereto, and all proceeds (including "proceeds" as
defined in the UCC) thereof. Such reassigned Receivables shall be treated by RFC
IV as collected in full as of the date on which they were reassigned. RFC IV
shall execute such documents and instruments of transfer or assignment and take
such other actions as shall reasonably be requested by FSB to effect the
conveyance of such Receivables and other property pursuant to this Subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in Subsection
4.01(a) or (c) or Subsection 4.02(a)(i) or (v) is not true and correct in any
material respect and as a result of such breach RFC IV is required under Section
2.06 of the Pooling and Servicing Agreement to accept a reassignment of all of
the Receivables previously sold by FSB to RFC IV pursuant to this Agreement, FSB
shall accept a reassignment of such Receivables on the terms and conditions set
forth in Subsection 6.02(b).
22
(b) FSB shall accept reassignment of any Receivables described in
Subsection 6.02(a) from RFC IV on the date on which such Receivables are
reassigned to RFC IV, and shall pay for such reassigned Receivables by paying to
RFC IV, not later than 11:00 a.m., New York City time, on the first Transfer
Date following the Monthly Period in which such reassignment obligation arises,
an amount equal to the unpaid balance of such Receivables. Upon reassignment of
such Receivables, RFC IV shall automatically and without further action sell,
transfer, assign, set-over and otherwise convey to FSB, without recourse,
representation or warranty, all the right, title and interest of RFC IV in and
to such Receivables, all Insurance Proceeds, Issuer Rate Fees and Recoveries
allocable to such Receivables, all monies due or to become due and all amounts
received or receivable with respect thereto, all Collections with respect
thereto, and all proceeds (including "proceeds" as defined in the UCC) thereof.
Such reassigned Receivables shall be treated by RFC IV as collected in full as
of the date on which they were reassigned. RFC IV shall execute such documents
and instruments of transfer or assignment and take such other actions as shall
reasonably be requested by FSB to effect the conveyance of such Receivables and
other property pursuant to this Section.
[END OF ARTICLE VI]
23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to RFC IV's Obligations Regarding Initial
Receivables. The obligations of RFC IV to purchase the Receivables in the
Initial Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) all representations and warranties of FSB contained in this
Agreement shall be true and correct on the Closing Date with the same effect as
though such representations and warranties had been made on such date (except
that, to the extent any such representation or warranty expressly relates to an
earlier date, such representation or warranty was true and correct on such
earlier date);
(b) all information concerning the Initial Accounts provided to RFC IV
shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) FSB shall have (i) delivered to RFC IV a true and correct Account
Schedule with respect to the Initial Accounts, and (ii) performed all other
obligations required to be performed by FSB on or before the Closing Date by the
provisions of this Agreement;
(d) FSB shall have recorded and filed, at its expense, any financing
statement with respect to the Purchased Assets meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect the sale of the Purchased Assets from FSB to RFC IV, and shall deliver a
file-stamped copy of such financing statements or other evidence of such filings
to RFC IV; and
(e) all corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to RFC IV, and RFC IV shall have received
from FSB copies of all documents (including records of corporate proceedings)
relevant to the transactions herein contemplated as RFC IV may reasonably have
requested.
Section 7.02. Conditions Precedent to FSB'S obligations. The
obligations of FSB to sell the Receivables in the Initial Accounts on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) all representations and warranties of RFC IV contained in this
Agreement shall be true and correct on the Closing Date with the same effect as
though such representations and warranties had been made on such date (except
that, to the extent any such representation or warranty expressly relates to an
earlier date, such representation or warranty was true and correct on such
earlier date);
(b) payment or provision for payment of the Purchase Price in
accordance with Section 3.01 hereof shall have been made; and
24
(c) all company and legal proceedings and all instruments in connection
with the transactions contemplated by this Agreement shall be satisfactory in
form and substance to FSB, and FSB shall have received from RFC IV copies of all
documents (including records of company proceedings) relevant to the
transactions herein contemplated as FSB may reasonably have requested.
[END OF ARTICLE VII]
25
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the date of
execution and delivery hereof and shall continue at least until the earlier of
(i) the termination of the Trust as provided in Article XII of the Pooling and
Servicing Agreement and (ii) the Pooling and Servicing Agreement being amended
for the purpose of replacing RFC IV as Transferor under the Pooling and
Servicing Agreement. Thereafter this Agreement may be terminated by the mutual
agreement of the parties hereto.
Section 8.02. Purchase Termination. If (i) FSB shall file a petition or
commence a Proceeding (A) to take advantage of any bankruptcy, conservatorship,
receivership, insolvency, or similar laws or (B) for the appointment of a
trustee, conservator, receiver, liquidator, or similar official for or relating
to FSB or all or substantially all of its property, (ii) FSB shall consent or
fail to object to any such petition filed or Proceeding commenced against or
with respect to it or all or substantially all of its property, or any such
petition or Proceeding shall not have been dismissed within sixty (60) days of
its filing or commencement, or a court, agency, or other supervisory authority
with jurisdiction shall have decreed or ordered relief with respect to any such
petition or Proceeding, (iii) FSB shall be unable, or shall admit in writing its
inability, to pay its debts generally as they become due, (iv) FSB shall make an
assignment for the benefit of its creditors or (v) FSB shall voluntarily suspend
payment of its obligations (each, an "Insolvency Event"); then FSB shall
immediately cease to sell Principal Receivables to RFC IV and shall promptly
give notice to RFC IV and the Trustee of such Insolvency Event. Notwithstanding
any cessation of the sale to RFC IV of additional Principal Receivables,
Principal Receivables sold to RFC IV prior to the occurrence of such Insolvency
Event, Collections in respect of such Principal Receivables, Finance Charge
Receivables whenever created that accrue in respect of such Principal
Receivables, Collections in respect of such Finance Charge Receivables, and
Issuer Rate Fees allocable to the foregoing shall continue to be property of RFC
IV available for transfer by RFC IV to the Trustee pursuant to the Pooling and
Servicing Agreement. To the extent that it is not clear to FSB whether
collections relate to a Receivable that was sold to RFC IV or to a receivable
that FSB has not sold to RFC IV, FSB agrees that it shall allocate payments on
each Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account.
[END OF ARTICLE VIII]
26
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed orally, but
only by an instrument in writing signed by RFC IV and FSB in accordance with
this Section 9.01; provided, however, that no amendment shall be effective
unless (x) FSB and RFC IV have given prior notice to the Trustee and each Rating
Agency, and (y) written confirmation has been received by RFC IV from each
Rating Agency that such amendment will not result in the reduction or withdrawal
of the respective ratings of such Rating Agency for any securities issued by the
Trust; provided, further, that FSB shall have delivered to RFC IV an Officer's
Certificate of FSB, dated the date of such action, stating that FSB reasonably
believes that such action will not cause a Pay-Out Event or a Reinvestment
Event. Any conveyance (including any Supplemental Conveyance) or reassignment
executed in accordance with the provisions hereof shall not be considered to be
an amendment to this Agreement. A copy of any amendment to this Agreement shall
be sent to each Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested
and postage prepaid, to (a) in the case of FSB, American Express Bank, FSB, 4315
South 0000 Xxxx, 00-00-00, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President
(facsimile: (000) 000-0000), (b) in the case of RFC IV, American Express
Receivables Financing Corporation IV LLC, 0000 Xxxxx 0000 Xxxx, Xxxx 0000,
00-00-00, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President (facsimile: (801)
945-4060) and (c) in the case of the Trustee, The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration (facsimile: 212-815-3883); or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party in accordance with this Section 9.03.
Section 9.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions,
or terms shall be deemed severable from the remaining covenants, agreements,
provisions, and terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 9.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than RFC IV's assignment of its right, title, and
interest in, to, and under this Agreement to the Trustee as contemplated by the
Pooling and Servicing Agreement and Section 9.06 hereof, this Agreement may not
be assigned by the parties hereto; provided, however, that FSB shall have the
right to assign its right, title and interest in, to and under this Agreement to
(a) any successor by merger assuming this Agreement or (b) to any other entity;
provided, further, that (x) in the case of an assignment pursuant to clauses (a)
and (b), FSB has given ten (10) days prior notice to RFC IV, the Trustee and
each Rating Agency, and (y) in the case of an assignment pursuant to clause (b),
written confirmation has been received by RFC IV and the Trustee from each
Rating Agency that such assignment will not result in the reduction or
withdrawal of the respective ratings of such Rating Agency for any securities
issued by the Trust.
27
Section 9.06. Acknowledgement and Agreement of FSB. By execution below,
FSB expressly acknowledges and agrees that all of RFC IV's right, title, and
interest in, to, and under this Agreement, including all of RFC IV's right,
title, and interest in and to the Purchased Assets, may be assigned by RFC IV to
the Trustee, and FSB consents to such assignment. FSB further agrees that
notwithstanding any claim, counterclaim, right of setoff or defense which it may
have against RFC IV, due to a breach by RFC IV of this Agreement or for any
other reason, and notwithstanding the bankruptcy of RFC IV or any other event
whatsoever, FSB's sole remedy shall be a claim against RFC IV for money damages,
and then only to the extent of funds available to RFC IV, and in no event shall
FSB assert any claim on or any interest in the Purchased Assets or take any
action which would reduce or delay receipt by the Trustee of Collections with
respect to the Purchased Assets. Additionally, FSB agrees that any amounts
payable by FSB to RFC IV hereunder which are to be paid by RFC IV to the Trustee
or the Servicer shall be paid by FSB directly to the Trustee or the Servicer, as
applicable, as assignee of RFC IV.
Section 9.07. Further Assurances. RFC IV and FSB agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party or the Trustee
more fully to effect the purposes of this Agreement, including the execution of
any financing statements or amendments thereto or equivalent documents relating
to the Purchased Assets for filing under the provisions of the UCC or other law
of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of RFC IV or FSB, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 9.09. Counterparts. This Agreement 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 together shall constitute one and
the same instrument.
Section 9.10. Binding; Third-party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. The Trust and the Trustee shall be
considered third-party beneficiaries of this Agreement.
Section 9.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.12. Headings. The headings are for purposes of reference only
and shall not otherwise affect the meaning or interpretation of any provision
hereof.
28
Section 9.13. Schedules and Exhibits. The schedules and exhibits
attached hereto and referred to herein shall constitute a part of this Agreement
and are incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Purchased Assets by RFC IV
to the Trustee pursuant to the Pooling and Servicing Agreement.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, FSB shall not, prior to the date which is one
year and one day after the termination of this Agreement, acquiesce, petition or
otherwise invoke or cause RFC IV or the Trust to invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against RFC IV or the Trust under any Debtor Relief Law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of RFC IV or the Trust or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of RFC IV or
the Trust.
[END OF ARTICLE IX]
29
IN WITNESS WHEREOF, RFC IV and FSB have caused this
Receivables Purchase Agreement to be duly executed by their respective officers
as of the date first above written.
AMERICAN EXPRESS BANK, FSB
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President & Chief Operating Officer
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION IV LLC
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
Acknowledged and Accepted by:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. [___], dated as of [__________], by and
between AMERICAN EXPRESS BANK, FSB, a federally-chartered savings bank (together
with its permitted successors and assigns, "FSB"), and AMERICAN EXPRESS
RECEIVABLES FINANCING CORPORATION IV LLC, a Delaware limited liability company
(together with its permitted successors and assigns, "RFC IV"), pursuant to the
Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, FSB and RFC IV are parties to a Receivables Purchase
Agreement, dated as of April 16, 2004 (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise modified,
the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, FSB wishes to
designate Aggregate Addition Accounts to be included as Accounts and FSB wishes
to convey its right, title and interest in the Receivables of such Aggregate
Addition Accounts, whether existing on the Addition Cut-Off Date or thereafter
created, to RFC IV pursuant to the Receivables Purchase Agreement; and
WHEREAS, RFC IV is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, FSB and RFC IV hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
meanings ascribed to them in the Receivables Purchase Agreement unless otherwise
defined herein.
"Addition Date" shall mean, with respect to the Aggregate Addition
Accounts, [__________].
"Addition Cut-Off Date" shall mean, with respect to the Aggregate
Addition Accounts, [----------].
"Additional Purchased Assets" shall have the meaning set forth in
Subsection 3(a).
"Aggregate Addition Accounts" shall mean the Aggregate Addition
Accounts, as defined in the Receivables Purchase Agreement, that are designated
hereby and listed on Schedule 1 hereto. [To be modified for New Accounts.]
A-1
2. Designation of Aggregate Addition Accounts. FSB delivers herewith an
Account Schedule containing a true and complete list of the Aggregate Addition
Accounts. Such Account Schedule is incorporated into and made part of this
Supplemental Conveyance, shall be Schedule 1 to this Supplemental Conveyance and
shall supplement Schedule 1 to the Receivables Purchase Agreement. [To be
modified for New Accounts.]
3. Conveyance of Receivables.
(a) FSB does hereby sell, transfer, assign, set over and otherwise
convey to RFC IV, without recourse except as provided in the Receivables
Purchase Agreement, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under the Receivables arising in the Aggregate
Addition Accounts (including Related Accounts and Transferred Accounts with
respect to such Aggregate Addition Accounts), existing at the close of business
on the Addition Cut-Off Date and thereafter created, all Insurance Proceeds,
Issuer Rate Fees and Recoveries allocable to such Receivables, all monies due or
to become due and all amounts received or receivable with respect thereto, all
Collections with respect thereto, and all proceeds (including "proceeds" as
defined in the UCC) thereof (collectively, the "Additional Purchased Assets").
(b) In connection with such sale and if necessary, FSB agrees to record
and file, at its own expense, one or more financing statements (and amendments
with respect to such financing statements when applicable) with respect to the
Additional Purchased Assets meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect the sale of
the Additional Purchased Assets to RFC IV, and to deliver a file-stamped copy of
such financing statements or amendments or other evidence of such filing to RFC
IV.
(c) In connection with such sale, FSB further agrees, at its own
expense, on or prior to the date of this Supplemental Conveyance, to indicate in
the appropriate computer files that all Receivables created in connection with
the Aggregate Addition Accounts and the related Additional Purchased Assets have
been conveyed to RFC IV pursuant to this Supplemental Conveyance.
(d) The parties hereto intend that the conveyance of FSB's right, title
and interest in and to the Additional Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from FSB to RFC IV. It is the intention of the
parties hereto that the arrangements with respect to the Additional Purchased
Assets shall constitute a purchase and sale of such Additional Purchased Assets
and not a loan, including for accounting purposes. In the event, however, that
it were to be determined that the transactions evidenced hereby constitute a
loan and not a purchase and sale, it is the intention of the parties hereto that
this Supplemental Conveyance shall constitute a security agreement under
applicable law, and that FSB shall be deemed to have granted, and FSB does
hereby grant, to RFC IV a first priority perfected security interest in all of
FSB's right, title and interest, whether now owned or hereafter acquired, in, to
and under the Additional Purchased Assets to secure the obligations of FSB
hereunder and under the Receivables Purchase Agreement.
A-2
(e) To the extent that FSB retains any interest in the Additional
Purchased Assets, FSB hereby grants to the Trustee a security interest in all of
FSB's right, title and interest, whether now owned or hereafter acquired, in, to
and under the Additional Purchased Assets, to secure the performance of all of
the obligations of FSB hereunder and under the Receivables Purchase Agreement.
With respect to such security interest and such collateral, the Trustee shall
have all of the rights that it has under the Pooling and Servicing Agreement.
The Trustee shall also have all of the rights of a secured creditor under the
UCC.
4. Acceptance by RFC IV. RFC IV hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Supplemental Conveyance,
FSB delivered to RFC IV the Account Schedule described in Section 2 of this
Supplemental Conveyance with respect to all Additional Accounts. [To be modified
for New Accounts.]
5. Representations and Warranties of FSB. FSB hereby acknowledges on
the Addition Date that it makes the representations and warranties in Sections
4.01 and 4.02 of the Receivables Purchase Agreement with respect to the
Aggregate Addition Accounts.
6. Ratification of the Receivables Purchase Agreement. The Receivables
Purchase Agreement is hereby ratified, and all references to the "Receivables
Purchase Agreement," to "this Agreement" and "herein" shall be deemed from and
after the Addition Date to be a reference to the Receivables Purchase Agreement
as supplemented and amended by this Supplemental Conveyance. Except as expressly
amended hereby, all the representations, warranties, terms, covenants and
conditions of the Receivables Purchase Agreement shall remain unamended and
shall continue to be, and shall remain, in full force and effect in accordance
with its terms and except as expressly provided herein shall not constitute or
be deemed to constitute a waiver of compliance with or consent to non-compliance
with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, RFC IV and FSB have caused this Supplemental
Conveyance to be duly executed and delivered by their respective duly authorized
officers on the date first above written.
AMERICAN EXPRESS BANK, FSB
By:
----------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION IV LLC
By:
----------------------------------
Name:
Title:
Acknowledged and Accepted by:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Name:
Title:
A-4
Schedule 1 to
Supplemental
Conveyance
AGGREGATE ADDITION ACCOUNTS
A-5
SCHEDULE 1
LIST OF ACCOUNTS
I-1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
----
Section 1.01. Definitions.................................................1
Section 1.02. Other Definitional Provisions...............................9
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase ..................................................10
Section 2.02. Addition of Accounts.......................................11
Section 2.03. Removal and Deletion of Accounts...........................13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.............................................14
Section 3.02. Adjustments to Purchase Price..............................14
Section 3.03. Use of Name, Logo and Marks................................14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of FSB Relating to FSB......15
Section 4.02. Representations and Warranties of FSB Relating to
the Agreement and the Receivables..........................16
Section 4.03. Representations and Warranties of RFC IV...................17
ARTICLE V
COVENANTS
Section 5.01. Covenants of FSB...........................................19
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.....................22
Section 6.02. Reassignment of Other Receivables..........................22
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to RFC IV's Obligations Regarding
Initial Receivables........................................24
Section 7.02. Conditions Precedent to FSB's Obligations..................24
i
TABLE OF CONTENTS
continued
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Page
----
Section 8.01. Term ......................................................26
Section 8.02. Purchase Termination.......................................26
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment .................................................27
Section 9.02. Governing Law .............................................27
Section 9.03. Notices ...................................................27
Section 9.04. Severability of Provisions.................................27
Section 9.05. Assignment ................................................27
Section 9.06. Acknowledgement and Agreement of FSB.......................28
Section 9.07. Further Assurances.........................................28
Section 9.08. No Waiver; Cumulative Remedies.............................28
Section 9.09. Counterparts ..............................................28
Section 9.10. Binding; Third-Party Beneficiaries.........................28
Section 9.11. Merger and Integration.....................................28
Section 9.12. Headings...................................................28
Section 9.13. Schedules and Exhibits.....................................29
Section 9.14. Survival of Representations and Warranties.................29
Section 9.15. Nonpetition Covenant.......................................29
EXHIBIT A: FORM OF SUPPLEMENTAL CONVEYANCE.........................A-1
SCHEDULE 1: LIST OF ACCOUNTS.......................................I-1
ii
