Exhibit 4.1
EXECUTION COPY
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AMERICAN EXPRESS ISSUANCE TRUST
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS CENTURION BANK
and
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
Dated as of January 24, 2007
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
January 24, 2007, by and between AMERICAN EXPRESS CENTURION BANK, a Utah
industrial bank (together with its permitted successors and assigns,
"CENTURION") and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New
York corporation (together with its permitted successors and assigns, "TRS").
W I T N E S S E T H:
WHEREAS, TRS desires to purchase, from time to time, certain
Receivables (hereinafter defined) existing or arising in designated charge
accounts of Centurion;
WHEREAS, Centurion desires to sell and assign, from time to time,
certain Receivables to TRS upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased hereunder
will be transferred by TRS to American Express Receivables Financing Corporation
V ("RFC V") and by RFC V to the Trust under the terms of the Transfer and
Servicing Agreement in connection with the issuance of notes secured by the
Receivables (each capitalized term as hereinafter defined);
WHEREAS, Centurion agrees that all representations, warranties,
covenants and agreements made by Centurion herein with respect to the Accounts
and the Receivables shall also be for the benefit of RFC V, the Trust, the Owner
Trustee, the Indenture Trustee and the Noteholders (each capitalized term as
hereinafter defined);
WHEREAS, Centurion and TRS previously entered into the Receivables
Purchase Agreement, dated as of May 19, 2005 (the "ORIGINAL AGREEMENT"); and
WHEREAS, Centurion and TRS hereto desire to amend and restate the
Original Agreement.
NOW, THEREFORE, it is hereby agreed by and between Centurion and TRS
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 each (a) Initial Account, (b) each Additional
Account (but only from and after the Addition Date with respect thereto) and (c)
each Related Account. The term "Account" shall include any account replacing an
Account (as defined in the TRS-RFC V Receivables Purchase Agreement) in
connection with the transfer of ownership of such Account (as defined in the
TRS-RFC V Receivables Purchase Agreement) from an Account Owner to Centurion
(provided that such replacement account can be traced or identified by reference
to, or by way of, the code designation in the securitization field of such
replacement account, which code designation is contained in the computer or
other records of Centurion used to generate the Account Schedule). The term
"Account" shall exclude (i) any Deleted Account and (ii) any Account, all the
Receivables
of which are reassigned to TRS pursuant to Section 6.01 or Section 6.02. The
term "Account" shall include any Removed Account only prior to the Removal Date
with respect thereto.
"Account Agreement" shall mean, with respect to an Account, the
agreements between Centurion and an Obligor governing the terms and conditions
of such Account, as such agreements may be amended, modified or otherwise
changed from time to time and as distributed (including any amendments and
revisions thereto) to holders of such Account.
"Account Guidelines" shall mean the established policies and
procedures of Centurion, (a) relating to the operation of its charge business
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 charge privileges to customers, and (b) relating to the
maintenance of accounts and collection of receivables, in each case as such
policies and procedures may be amended, modified or otherwise changed from time
to time.
"Account Owner" shall have the meaning specified in the TRS-RFC V
Receivables Purchase Agreement.
"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, the aggregate amount
outstanding in such Account (a) on the Initial Cut Off Date (for the Account
Schedule delivered on the Closing Date) and (b) on the applicable Addition
Cut-Off Date (for any Account Schedule relating to Additional Accounts).
"Addition Cut-Off Date" shall mean (a) with respect to each New
Account, the date on which such New Account is originated, and (b) with respect
to Aggregate Addition Accounts, the date specified as such in the related
Aggregate Addition Account Supplemental Conveyance.
"Addition Date" shall mean (a) with respect to New Accounts, the
date from and after which such New Accounts are to be included as Accounts
pursuant to Section 2.03(a) and the related New Account Supplemental Conveyance,
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) and the related Aggregate Addition Account Supplemental
Conveyance.
"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" shall mean each charge account
established pursuant to an Account Agreement between Centurion and any Person,
which account is designated pursuant to Section 2.02 to be included as an
Account and identified on an Account Schedule delivered pursuant to Sections
2.01 and 2.02.
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"Aggregate Addition Account Supplemental Conveyance" shall have the
meaning specified in Subsection 2.02(b).
"Agreement" shall mean this Amended and Restated Receivables
Purchase Agreement, as the same may be amended and supplemented from time to
time.
"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 Centurion are located, are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Closing Date" shall mean May 19, 2005.
"Collection Account" shall have the meaning specified in the
Indenture.
"Collections" shall mean all payments (excluding Recoveries)
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).
"Credco" shall mean American Express Credit Corporation, a Delaware
corporation, including any subsidiary thereof, and its permitted successors and
assigns.
"Date of Processing" shall mean, with respect to any transaction or
receipt of Collections, the Business Day after such transaction or receipt is
first output, in written form under TRS's customary and usual practices, from
TRS'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 Account Guidelines and the
Servicer's customary and usual servicing procedures for servicing receivables
comparable to the Receivables. 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 (including Receivables that, though charged
off as uncollectible, may generate Recoveries) owned by TRS.
"Discount Option Receivables" shall have the meaning specified in
the Transfer and Servicing Agreement.
"Early Amortization Event" shall have the meaning specified in the
Indenture.
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"Eligible Account" shall mean each charge account established
pursuant to an Account Agreement between Centurion and any Person, which meets
the following requirements as of the applicable Selection Date:
(a) is a charge account in existence and maintained with Centurion;
(b) is payable in United States dollars;
(c) has not been identified by Centurion or TRS in its computer
files as canceled due to a related Obligor's bankruptcy or insolvency;
(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 a United States military address; provided, however, that, with
the consent of TRS, as of such Selection Date, up to 3% of the aggregate amount
of Receivables may have related Obligors who have provided, as their billing
addresses, addresses located outside of such jurisdictions;
(e) if such account is a 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 by Centurion to any other party;
(g) does not have any receivables that have been sold or pledged by
Centurion to any other Person other than Credco, TRS or any Transferor; and
(h) does not have any receivables that have been written off or that
have been identified by Centurion as having been incurred as a result of the
fraudulent use of a related charge card.
Notwithstanding the above requirements, Eligible Accounts may include accounts,
the receivables of which have been written off, or which have been identified by
Centurion or TRS in its computer files as canceled due to a related Obligor's
bankruptcy or insolvency, in each case as of the related Selection Date;
provided, however, that (1) the balance of all receivables included in such
accounts is reflected on the books and records of Centurion (and is treated for
purposes of this Agreement) as "zero" and (2) borrowing and charging privileges
with respect to all such accounts have been canceled in accordance with the
Account Guidelines applicable thereto.
"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 Centurion and pursuant to an Account
Agreement that complies in all material respects with all Requirements of Law
applicable to Centurion, in either case, the failure to comply with which would
have a material adverse effect on TRS;
(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
Centurion 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, immediately prior to the sale of such Receivable to
TRS, Centurion has good and marketable title thereto, free and clear of all
Liens (other than any Lien for municipal or other local taxes of Centurion if
such taxes are not then due and payable or if Centurion is then contesting the
validity thereof in good faith by appropriate proceedings and has set aside on
its books and records adequate reserves with respect thereto);
(e) which has been the subject of a valid sale and assignment from
Centurion to TRS of all Centurion's right, title and interest therein (including
any proceeds thereof);
(f) which is the legal, valid and binding payment obligation of an
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 TRS, has
not been waived or modified except as permitted in accordance with the Account
Guidelines and which waiver or modification is reflected in Centurion's computer
file of Accounts;
(h) which, at the time of the sale of such Receivable to TRS, is not
subject to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of an 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 TRS,
Centurion 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 TRS,
Centurion has not taken any action which would impair, or omitted to take any
action the omission of which would impair, the rights of TRS 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
jurisdiction where the filing of a financing statement is then required to
perfect TRS's interest in such Receivable and the proceeds thereof.
"Event of Default" shall have the meaning specified in the
Indenture.
"Excess Funding Account" shall have the meaning specified in the
Indenture.
"Finance Charge Receivables" shall mean the aggregate amount of
Discount Option Receivables.
"First Note Transfer Date" shall have the meaning specified in the
Transfer and Servicing 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.
"Indenture" shall mean the Indenture, dated as of May 19, 2005,
between the Trust, as issuer, and the Indenture Trustee, as the same may be
amended, supplemented or otherwise modified from time to time.
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"Indenture Trustee" shall mean The Bank of New York, in its capacity
as indenture trustee under the Indenture, its successors in interest and any
successor indenture trustee under the Indenture.
"Initial Account" shall mean each charge account established
pursuant to an Account Agreement between Centurion and any Person, which account
is identified in the Account Schedule delivered or caused to be delivered by
Centurion to TRS on the Closing Date.
"Initial Cut-Off Date" shall mean the opening of business on April
25, 2005.
"Insolvency Event" shall have the meaning specified in Section 8.02.
"Issuer Rate Fees" shall mean all issuer rate fees payable to
Centurion in connection with cardholder charges for goods or services with
respect to the Receivables.
"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 security interest created
in favor of the Indenture Trustee shall not be deemed to constitute a Lien.
"Monthly Period" shall mean, with respect to each Payment 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 Payment Date shall
occur.
"New Account" shall mean each charge account established pursuant to
an Account Agreement between Centurion and any Person, which account is
designated pursuant to Subsection 2.03(a) to be included as an Account and
identified on an Account Schedule delivered pursuant to Sections 2.01 and 2.03.
"New Account Delivery Date" shall mean, with respect to any New
Account, the fifteenth calendar day of the month (or, if such 15th calendar day
is not a Business Day, the next succeeding Business Day) following the Monthly
Period in which the Addition Date for such New Account occurs.
"New Account Supplemental Conveyance" shall have the meaning
specified in Subsection 2.03(b).
"Note Rating Agency" shall mean the nationally recognized
statistical rating agency or agencies, if any, selected by RFC V and any other
Transferor to rate any securities issued by the Trust.
"Noteholder" shall have the meaning specified in the Indenture.
"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.
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"Officer's Certificate" shall mean a certificate delivered to TRS
signed by any Vice President or more senior officer of Centurion and which
states that the certifications set forth in such certificate are based upon the
results of a due inquiry into the matters in question conducted by or under the
supervision of the signing officer and that the facts stated in such
certifications are true and correct to the best of the signing officer's
knowledge.
"Original Agreement" shall have the meaning specified in the
recitals hereto.
"Owner Trustee" shall mean Wilmington Trust Company, not in its
individual capacity, but solely as owner trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under the Trust
Agreement.
"Payment Date" shall have the meaning specified in the Indenture.
"Person" shall mean any person or entity, including any individual,
corporation, limited liability company, partnership (general or limited), joint
venture, association, joint-stock company, trust, unincorporated organization,
Governmental Authority, or other entity of any nature.
"Principal Receivables" shall mean all Receivables other than
Finance Charge Receivables.
"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).
"Receivables" shall mean all amounts shown on the records of
Centurion as amounts payable by an Obligor 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.
"Related Account" shall mean an Account with respect to which a new
account number has been issued by Centurion (i) in compliance with the Account
Guidelines and the related Account Agreement, (ii) to the same Obligor or
Obligors of such Account, and (iii) (a) as a result of the charge card with
respect to such Account being lost or stolen; (b) as a result of the related
Obligor requesting a change in his or her billing cycle; (c) as a result of the
related Obligor requesting the discontinuance of responsibility with respect to
such Account; (d) as a result of the related Obligor requesting a product
change; or (e) for any other reasons permitted by the Account Guidelines;
provided that such Account can be traced or identified by reference to or by way
of the code designation in the securitization field of such Account, which code
designation is contained in the computer or other records of Centurion used to
generate the Account Schedule.
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"Removed Account" shall mean any Account as to which Centurion has
received notice from TRS that such Account is a "Removed Account" as defined in
the Transfer 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 V" shall have the meaning specified in the recitals hereto.
"Selection Date" shall mean (i) with respect to each Initial Account
with the code designation "AA," the close of business on the cycle billing date
for such Account occurring in the Monthly Period beginning October 2, 2004 and
ending at the close of business on October 29, 2004 and (b) with respect to each
Initial Account with the code designation "5," the close of business on the
cycle billing date for such Account occurring in the Monthly Period beginning
March 18, 2004 and ending at the close of business on April 14, 2004, (ii) with
respect to each Aggregate Addition Account, the date specified as such in the
related Aggregate Addition Account Supplemental Conveyance and (iii) with
respect to each New Account, the date on which such New Account is originated.
"Servicer" shall mean the entity acting as Servicer under the
Transfer and Servicing Agreement.
"Small Balances" shall have the meaning established in accordance
with the Account Guidelines.
"Stop Date" shall have the meaning specified in Subsection 2.04(a).
"Supplemental Conveyance" shall mean an Aggregate Addition Account
Supplemental Conveyance or a New Account Supplemental Conveyance.
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement, dated as of May 19, 2005, among RFC V, as Transferor, TRS,
as Servicer and Administrator, the Trust, as Issuer, and the Indenture Trustee,
as amended, supplemented or restated from time to time.
"Transfer Restriction Event" shall mean that Centurion is unable for
any reason to transfer Receivables to TRS 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.
"Transferor" shall mean the entity or entities acting as a
Transferor under the Transfer and Servicing Agreement.
"TRS" shall have the meaning specified in the initial paragraph of
this Agreement.
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"TRS-RFC V Receivables Purchase Agreement" shall mean the
receivables purchase agreement, dated May 19, 2005, between TRS and RFC V, as
the same may be amended, supplemented or otherwise modified from time to time.
"Trust" shall mean the American Express Issuance Trust, created
under the Trust Agreement.
"Trust Agreement" shall mean the Trust Agreement relating to the
Trust, dated as of May 18, 2005, between the Transferor and the Owner Trustee,
as the same may be amended, supplemented or otherwise modified from time to
time.
"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, Centurion does hereby sell, transfer, assign, set over and
otherwise convey to TRS (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
Initial Cut-Off Date, in the case of Receivables arising in the Initial Accounts
(including Related Accounts with respect to such Initial Accounts), and at the
applicable Addition Cut-Off Date, in the case of Receivables arising in the
Additional Accounts (including Related Accounts with respect to such Additional
Accounts), and in each case thereafter created from time to time in the
Accounts, all 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, but excluding any Issuer Rate Fees allocable to
such Receivables (collectively, the "PURCHASED ASSETS"). As purchaser of the
Purchased Assets, TRS shall have the right to pledge, assign, transfer, sell and
exercise full control over all the Purchased Assets, subject to the interests of
any subsequent purchaser or assignee of the Purchased Assets.
The Receivables existing in the Initial Accounts at 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 Centurion and
purchased by TRS on the Closing Date. Receivables arising after the Closing Date
in the Initial Accounts and the related Purchased Assets shall be sold by
Centurion and purchased by TRS on the date such Receivables arise. The
Receivables existing in Additional Accounts at 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 Centurion and
purchased by TRS on the related Addition Date. Receivables arising after such
Addition Date in such Additional Accounts and the related Purchased Assets shall
be sold by Centurion and purchased by TRS on the date such Receivables arise.
(b) Centurion 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 Centurion to TRS, (ii) cause such financing statements and
amendments to name Centurion, as seller, and TRS, 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 TRS as soon as is practicable
after filing.
(c) Centurion 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 TRS in accordance
with this Agreement and have been conveyed by TRS to RFC V pursuant to the
TRS-RFC V Receivables Purchase Agreement and by RFC V to the Trust pursuant to
the Transfer 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 or cause to be delivered to TRS an
Account Schedule (provided, however, that such Account Schedule shall be
provided in
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respect of New Accounts on the New Account Delivery Date) containing a true and
complete list of all such Accounts. Centurion 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 Centurion has taken such action as is necessary or advisable to cause the
interest of TRS 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 or caused to be updated by Centurion
on each Addition Date (or, with respect to New Accounts, on the New Account
Delivery Date) to include any new Additional Accounts, and shall be updated or
caused to be updated by Centurion not later than semi-annually to include any
new Related Accounts.
(d) The parties hereto intend that the conveyance of Centurion'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 Centurion to TRS. 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 Centurion
shall be deemed to have granted, and Centurion does hereby grant, to TRS a first
priority perfected security interest in all of Centurion's right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Purchased Assets to secure the obligations of Centurion hereunder.
(e) To the extent that Centurion retains any interest in the
Purchased Assets, Centurion hereby grants to the Trust and the Indenture Trustee
a security interest in all of Centurion'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 Centurion hereunder. With respect
to such security interest and such collateral, the Trust and the Indenture
Trustee shall have all of the rights that it has under the Transfer and
Servicing Agreement. Each of the Trust and the Indenture Trustee shall also have
all of the rights of a secured creditor under the UCC.
Section 2.02. Addition of Aggregate Addition Accounts.
(a) If, from time to time, TRS becomes obligated to designate
Aggregate Addition Accounts (as such term is defined in the Transfer and
Servicing Agreement) pursuant to Subsection 2.02(a) of the TRS-RFC V Receivables
Purchase Agreement, then TRS may, at its option, give Centurion written notice
thereof on or before the eighth Business Day (the "ADDITION NOTICE DATE") prior
to the Addition Date therefor, and upon receipt of such notice, Centurion shall,
on or before the Addition Date, designate sufficient Eligible Accounts as
Aggregate Addition Accounts and shall sell to TRS the Purchased Assets related
to such Aggregate Addition Accounts so that, following the inclusion thereof,
TRS will be in compliance with the requirements of Subsection 2.02(a) of the
TRS-RFC V Receivables Purchase Agreement. Additionally, subject to Subsection
2.02(b) of this Agreement, at its option and with the consent of TRS, Centurion
may designate Eligible Accounts as Aggregate Addition Accounts and sell to TRS
the Purchased Assets related to such Aggregate Addition Accounts. In either
event, Centurion shall have sole responsibility for selecting the Aggregate
Addition Accounts.
(b) On the Addition Date with respect to any designation of
Aggregate Addition Accounts, such Aggregate Addition Accounts shall become
Accounts, and TRS shall purchase
11
Centurion's right, title and interest in, to and under the Receivables in such
Aggregate Addition 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 applicable Selection Date, each Aggregate Addition
Account shall be an Eligible Account;
(ii) Centurion shall have delivered to TRS copies of UCC financing
statements covering such Aggregate Addition Accounts, if necessary to
perfect TRS's interest in the Receivables arising therein and the related
Purchased Assets;
(iii) to the extent daily collections are required by Section 3.1 of
the Transfer and Servicing Agreement, Centurion, on behalf of TRS, shall
have deposited into the Collection Account all Collections with respect to
such Aggregate Addition Accounts since the applicable Addition Cut-Off
Date;
(iv) as of each of the Addition Cut-Off Date and the Addition Date,
no Insolvency Event with respect to Centurion shall have occurred nor
shall the sale of the Receivables arising in the Aggregate Addition
Accounts and the related Purchased Assets to TRS have been made in
contemplation of the occurrence thereof;
(v) such addition will not, in the reasonable belief of Centurion,
have a material adverse effect on TRS;
(vi) Centurion shall have delivered to TRS an Officer's Certificate
of Centurion, dated the Addition Date, confirming, to the extent
applicable and in Centurion's reasonable belief, the items set forth in
clauses (i) through (v) above;
(vii) Centurion shall have indicated in its computer files that
Receivables created in connection with such Aggregate Addition Accounts
and the related Purchased Assets have been sold to TRS and shall have
delivered or caused to be delivered to TRS the Account Schedule with
respect to such Aggregate Addition Accounts in accordance with Subsection
2.01(c); and
(viii) Centurion and TRS shall have entered into a duly executed,
written assignment, substantially in the form of EXHIBIT A (an "AGGREGATE
ADDITION ACCOUNT SUPPLEMENTAL CONVEYANCE").
Section 2.03. Addition of New Accounts.
(a) Upon the mutual agreement of Centurion and TRS, subject to
compliance by Centurion with Subsection 2.03(b), Centurion may designate newly
originated Eligible Accounts to be included as New Accounts and sell to TRS the
Purchased Assets related to such New Accounts. Centurion shall cooperate with
TRS to enable TRS to comply with the requirements of Subsections 2.03(a) and (b)
of the TRS-RFC V Receivables Purchase Agreement and shall cooperate with TRS to
enable TRS to perform with respect to the Receivables in such New Accounts all
actions specified in Subsections 2.03(a) and (b) of the TRS-RFC V Receivables
Purchase Agreement.
(b) On the Addition Date with respect to any New Accounts, TRS shall
purchase Centurion's right, title and interest in, to and under the Receivables
in such New Accounts
12
(and such New Accounts shall be deemed to be Accounts for purposes of this
Agreement) upon satisfaction of the following conditions:
(i) as of the applicable Selection Date, each New Account shall be
an Eligible Account;
(ii) on such Addition Date, Centurion shall have delivered to TRS
copies of UCC financing statements covering such New Accounts, if
necessary to perfect TRS's interest in the Receivables arising therein and
the related Purchased Assets;
(iii) to the extent daily collections are required by Section 3.1 of
the Transfer and Servicing Agreement, Centurion, on behalf of TRS, shall
have deposited into the Collection Account all Collections with respect to
such New Accounts since the applicable Addition Cut-Off Date;
(iv) as of each of the Addition Cut-Off Date and such Addition Date,
no Insolvency Event with respect to Centurion shall have occurred nor
shall the sale of the Receivables arising in the New Accounts and the
related Purchased Assets to TRS have been made in contemplation of the
occurrence thereof;
(v) such addition will not, in the reasonable belief of Centurion,
have a material adverse effect on TRS;
(vi) on such Addition Date, Centurion shall have delivered to TRS an
Officer's Certificate of Centurion, dated such Addition Date, confirming,
to the extent applicable and in Centurion's reasonable belief, the items
set forth in clauses (i) through (v) above;
(vii) on such Addition Date, Centurion shall have indicated in its
computer files that Receivables created in connection with such New
Accounts and the related Purchased Assets have been sold to TRS; and
(viii) on such Addition Date, Centurion and TRS shall have entered
into a duly executed, written assignment, substantially in the form of
EXHIBIT B (a "NEW ACCOUNT SUPPLEMENTAL CONVEYANCE").
(c) On the related New Account Delivery Date, Centurion shall
deliver or cause to be delivered the Account Schedule with respect to such New
Accounts.
Section 2.04. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then Centurion shall
stop selling to TRS 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 TRS of additional
Receivables arising in such Removed Account, Receivables sold to TRS prior to
the Stop Date and Collections in respect of such Receivables shall continue to
be property of TRS available for transfer by TRS to RFC V pursuant to the
TRS-RFC V Receivables Purchase Agreement and by RFC V to the Trust pursuant to
the Transfer and Servicing Agreement. To the extent that it is not clear to
Centurion whether Collections relate to a Receivable that was sold to TRS or to
a receivable that Centurion did not sell to TRS, Centurion 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.
13
(b) On and after the Stop Date for a Removed Account, Centurion may
xxxx its books and records to indicate that such Account is a Removed Account,
but Centurion 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 Centurion has taken such action as is
necessary or advisable to cause the interest of TRS 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, Centurion may
delete such Deleted Account from SCHEDULE 1 hereto and, upon such deletion,
shall indicate in its computer files that such Deleted Account is no longer an
Account.
[END OF ARTICLE II]
14
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
The "PURCHASE PRICE" for the Receivables in the Initial Accounts
existing at the Initial Cut-Off Date, and the related Purchased Assets, that are
conveyed to TRS under this Agreement shall be payable on the Closing Date, in an
amount equal to 100% of the aggregate balance of the Receivables so conveyed,
adjusted to reflect such factors, if any, as Centurion and TRS mutually agree
will result in a Purchase Price determined to be the fair market value of such
Receivables and the related Purchased Assets. 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 TRS 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 Centurion and TRS, but no
later than the 15th calendar day of the Monthly Period (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
Centurion to TRS and (ii) shall be an amount equal to 100% of the aggregate
balance of the Receivables so conveyed, adjusted to reflect such factors, if
any, as Centurion and TRS mutually agree will result in a Purchase Price
determined to be the fair market value of such Receivables and the related
Purchased Assets.
Notwithstanding any other provision of this Agreement, Centurion
shall not be obligated to continue to sell Receivables or other Purchased Assets
to TRS to the extent that Centurion is not paid the Purchase Price therefor as
provided herein.
Section 3.02. Adjustments to Purchase Price. The Purchase Price
shall be reduced (a "PURCHASE PRICE ADJUSTMENT") on the Purchase Price Payment
Date with respect to any Receivable previously conveyed to TRS by Centurion
which is reduced by Centurion or the Servicer (pursuant to its customary
servicing standards and guidelines for customer service and cardmember account
relations and to give effect to rebates offered by Centurion) because of a
rebate, refund, unauthorized charge or billing error to an Obligor, because such
Receivable was created in respect of merchandise which was refused or returned
by an Obligor, or because Centurion or the Servicer processes as a credit
adjustment any uncollectible Small Balances, or if the Servicer otherwise
adjusts downward the amount of any Receivable without receiving Collections
therefor or without charging off such amount as uncollectible. The amount of
such reduction shall equal the reduction in the 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,
Centurion agrees that, on the Purchase Price Payment Date, Centurion shall pay
or cause to be paid to TRS an amount equal to the amount by which the Purchase
Price Adjustment exceeds the unadjusted Purchase Price. Notwithstanding the
foregoing, in no event shall a Purchase Price Adjustment include adjustments
attributable to uncollectible receivables and adjustments made as part of the
Servicer's credit and collection processes. For the avoidance of doubt, Purchase
Price Adjustments shall not have the purpose or effect of protecting TRS, as
purchaser of the Purchased Assets, from credit risk in the Purchased Assets.
Section 3.03. Use of Name, Logo and Marks. Centurion does hereby
grant to TRS a non-exclusive license to use the name "American Express Centurion
Bank" and all related
15
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.
Section 3.04. Servicing of Receivables. TRS is the Servicer of the
Purchased Assets pursuant to the Transfer and Servicing Agreement. TRS agrees
that Centurion shall not be responsible for the payment of any fees for
servicing the Purchased Assets sold by Centurion to TRS under this Agreement.
[END OF ARTICLE III]
16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Centurion Relating
to Centurion.
(a) Representations and Warranties. Centurion hereby represents and
warrants to, and agrees with, TRS as of the Closing Date and on each Addition
Date, that:
(i) Organization and Good Standing. Centurion is an industrial bank
validly existing under the laws of the State of Utah, 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. Centurion 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 Centurion to perform its
obligations under this Agreement.
(iii) Due Authorization. The execution and delivery by Centurion of
this Agreement and any other document or instrument delivered by Centurion
pursuant hereto, including any Supplemental Conveyance, to which Centurion
is a party and the consummation by Centurion of the transactions provided
for in this Agreement and any such Supplemental Conveyance, have been duly
authorized by Centurion by all necessary action on the part of Centurion.
(iv) No Conflict or Violation. The execution and delivery by
Centurion of this Agreement, the performance by Centurion of the
transactions contemplated by this Agreement and the fulfillment by
Centurion of the terms of this Agreement applicable to Centurion, will not
conflict with or violate any Requirements of Law applicable to Centurion
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 Centurion 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 Centurion, threatened, against
Centurion 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 Centurion,
would materially and adversely affect the performance by Centurion of its
obligations under this Agreement or (iv) seeking any determination or
ruling that, in the reasonable judgment of Centurion, 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 Centurion in connection with
the execution and delivery by Centurion
17
of this Agreement and the performance by Centurion of the transactions
contemplated by this Agreement have been duly obtained, effected or given
and are in full force and effect.
(b) Notice of Breach. The representations and warranties set forth
in this Section 4.01 shall survive the sale of the Purchased Assets to TRS. Upon
discovery by Centurion or TRS of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party, RFC V, the Owner Trustee and the
Indenture Trustee following such discovery.
Section 4.02. Representations and Warranties of Centurion Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. Centurion hereby represents and
warrants to TRS 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) each of this Agreement and, in the case of Additional Accounts,
the related Supplemental Conveyance constitutes a legal, valid and binding
obligation of Centurion enforceable against Centurion in accordance with
its terms, except as such enforceability may be limited by applicable
Debtor Relief Laws or general principles of equity;
(ii) (a) as of the Initial Cut-Off Date with respect to the Initial
Accounts (and the Receivables arising thereunder), 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 and (b) as of
the related Addition Cut-Off Date with respect to Additional Accounts (and
the Receivables arising thereunder), 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 TRS has been conveyed to TRS free
and clear of any Lien (other than any Lien for municipal or other local
taxes of Centurion if such taxes are not then due and payable or if
Centurion 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 Centurion in connection with the
conveyance of Receivables to TRS 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 TRS of all
right, title and interest of Centurion in the Purchased Assets, and such
sale is perfected under the UCC;
(vi) on the applicable Selection Date, each such Account is an
Eligible Account;
18
(vii) on the applicable Selection Date, each Receivable contained in
such Account on such applicable date and sold to TRS by Centurion is an
Eligible Receivable;
(viii) as of the date of the creation of any new Receivable sold to
TRS by Centurion, such Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by Centurion to be materially
adverse to the interests of TRS 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 TRS. Upon
discovery by either Centurion or TRS of a breach of any of the representations
and warranties set forth in this Section 4.02, the party discovering such breach
shall give prompt written notice to the other party, RFC V, the Owner Trustee
and the Indenture Trustee following such discovery. Centurion hereby
acknowledges that TRS intends to rely on the representations hereunder in
connection with representations made by TRS to secured parties, assignees or
subsequent transferees, including transfers made by TRS to RFC V pursuant to the
TRS-RFC V Receivables Purchase Agreement and thereafter by RFC V to the Trust
pursuant to the Transfer and Servicing Agreement and by the Trust to the
Indenture Trustee pursuant to the Indenture, and that RFC V, the Owner Trustee
and the Indenture Trustee may enforce such representations and warranties
directly against Centurion, and Centurion hereby consents to such reliance.
Section 4.03. Representations and Warranties of TRS. As of the
Closing Date and each Addition Date, TRS hereby represents and warrants to, and
agrees with, Centurion that:
(a) Organization and Good Standing. TRS is a corporation duly
organized and validly existing under the laws of the State of New York, 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 Qualification. TRS is duly qualified to do business and is
in good standing 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 TRS to perform its
obligations under this Agreement.
(c) Due Authorization. The execution and delivery by TRS of this
Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance, to which RFC V is a party, and the
consummation by TRS of the transactions provided for in this Agreement and any
such Supplemental Conveyance, have been duly authorized by TRS by all necessary
company action on the part of TRS.
(d) No Conflict or Violation. The execution and delivery by TRS of
this Agreement, the performance by TRS of the transactions contemplated by this
Agreement and the fulfillment by TRS of the terms of this Agreement applicable
to TRS, will not conflict with or violate any Requirements of Law applicable to
TRS 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
19
material default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which TRS is a party or by which it or any of its
properties are bound.
(e) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of TRS, threatened, against TRS, 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 TRS, would materially and adversely affect the
performance by TRS of its obligations under this Agreement or (iv) seeking any
determination or ruling that, in the reasonable judgment of TRS, would
materially and adversely affect the validity or enforceability of this
Agreement.
(f) 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 TRS in connection with the execution and
delivery by TRS of this Agreement and the performance by TRS 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 TRS. Upon discovery by
Centurion or TRS of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other party, RFC V, the Owner Trustee and the Indenture Trustee following
such discovery.
[END OF ARTICLE IV]
20
ARTICLE V
COVENANTS
Section 5.01. Covenants of Centurion. Centurion hereby covenants and
agrees with TRS as follows:
(a) Receivables Not To Be Evidenced by Instruments. Except in
connection with its enforcement or collection of an Account, Centurion will take
no action to cause any Receivable sold to TRS 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 Centurion, it shall be deemed to be a Receivable
described in Subsection 6.01(a) and shall be reassigned to Centurion in
accordance with Subsection 6.01(b).
(b) Security Interests. Except for the conveyances hereunder,
Centurion will not sell, pledge, assign or transfer to any other Person, or take
any other action inconsistent with TRS's ownership of, the Purchased Assets, or
grant, create, incur, assume or suffer to exist any Lien arising through or
under Centurion on any Purchased Asset or any interest therein (other than any
Lien for municipal or other local taxes of Centurion if such taxes are not then
due and payable or if Centurion 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 Centurion shall not claim any ownership
interest in any Purchased Asset and shall defend the right, title and interest
of TRS in, to and under the Purchased Assets against all claims of third parties
claiming through or under Centurion.
(c) Account Allocations. If a Transfer Restriction Event occurs,
Centurion agrees (except as prohibited by any such order or any Requirement of
Law) to allocate and pay to TRS, after the date of such Transfer Restriction
Event, all Collections with respect to Receivables previously sold to TRS. To
the extent that it is not clear to Centurion whether collections relate to a
Receivable that was sold to TRS or to a receivable that Centurion is unable to
sell to TRS, Centurion 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
TRS of additional Receivables, Receivables sold to TRS prior to the occurrence
of the Transfer Restriction Event and Collections in respect of such Receivables
shall continue to be property of TRS available for transfer by TRS to RFC V
pursuant to the TRS-RFC V Receivables Purchase Agreement and by RFC V to the
Trust pursuant to the Transfer and Servicing Agreement.
(d) Delivery of Collections. In the event that Centurion receives
Collections or any other amounts in respect of the Purchased Assets sold to TRS
hereunder, Centurion agrees to pay to TRS (or to RFC V, the Servicer or the
Indenture Trustee if TRS so directs) all such Collections and other amounts
promptly after receipt thereof.
(e) Notice of Liens. Centurion shall notify TRS promptly after
becoming aware of any Lien arising through or under Centurion on any Purchased
Asset other than the conveyances hereunder.
(f) Documentation of Transfer. Centurion 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 TRS.
21
(g) Account Agreements and Guidelines. Subject to compliance with
all Requirements of Law, Centurion may effect or permit a change to the terms
and provisions of the Account Agreements or the Account Guidelines applicable to
the Accounts in any respect (including the calculation of the amount or the
timing of charge-offs and other fees to be assessed thereon) only if such change
is made applicable to any comparable segment of charge accounts owned by
Centurion which have characteristics the same as, or substantially similar to,
the Accounts that are the subject of such change, except as otherwise restricted
by an endorsement, sponsorship, or other agreement between Centurion and an
unrelated third party or by the terms of the Account Agreements. Notwithstanding
the above, unless required by Requirements of Law, Centurion will not take any
action with respect to such Account Agreements or such Account Guidelines which,
at the time of such action, Centurion reasonably believes will have a material
adverse effect on TRS.
(h) Name and Type and Jurisdiction of Organization. Centurion shall
not change its name or its type or jurisdiction of organization without
previously having delivered to TRS 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 TRS in
the Purchased Assets.
(i) Annual Opinion. On or before March 31st of each calendar year,
commencing March 31, 2006, Centurion shall deliver to TRS, with a copy to the
Indenture 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 TRS 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 TRS in the Purchased Assets or stating what
such filings will be necessary prior to such March 31st.
[END OF ARTICLE V]
22
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), (viii) or (ix) 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 TRS is required
under Subsection 6.01(a) of the TRS-RFC V Receivables Purchase Agreement to
accept reassignment of such Receivables previously sold by Centurion to TRS
pursuant to this Agreement, Centurion shall accept reassignment of such
Receivables on the terms and conditions set forth in Subsection 6.01(b).
(b) Centurion shall accept reassignment of any Receivables described
in Subsection 6.01(a) from TRS on the date on which such Receivables are
reassigned to TRS pursuant to Subsection 6.01(a) of the TRS-RFC V Receivables
Purchase Agreement, and shall pay for such reassigned Receivables by paying to
TRS in immediately available funds an amount equal to the unpaid balance of such
Receivables. Upon reassignment of such Receivables, TRS shall automatically and
without further action sell, transfer, assign, set-over and otherwise convey to
Centurion, without recourse, representation or warranty, all the right, title
and interest of TRS in and to such Receivables, all 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 TRS as collected in full as of the date on which
they were reassigned. TRS shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by Centurion 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)(i) or (iii) or Subsection 4.02(a)(i) or (v) is not true and
correct in any material respect and as a result of such breach TRS is required
under Subsection 6.02(b) of the TRS-RFC V Receivables Purchase Agreement to
accept a reassignment of all of the Receivables previously sold by Centurion to
TRS pursuant to this Agreement, Centurion shall accept a reassignment of such
Receivables on the terms and conditions set forth in Subsection 6.02(b).
(b) Centurion shall accept reassignment of any Receivables described
in Subsection 6.02(a) from TRS on the date on which such Receivables are
reassigned to TRS, and shall pay for such reassigned Receivables by paying to
TRS, not later than 11:00 a.m., New York City time, on the First Note 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, TRS shall automatically and without further action sell,
transfer, assign, set-over and otherwise convey to Centurion, without recourse,
representation or warranty, all the right, title and interest of TRS in and to
such Receivables, all 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 TRS
as collected in full as of the date on
23
which they were reassigned. TRS shall execute such documents and instruments of
transfer or assignment and take such other actions as shall reasonably be
requested by Centurion to effect the conveyance of such Receivables and other
property pursuant to this Subsection.
[END OF ARTICLE VI]
24
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to TRS's Obligations Regarding Initial
Receivables. The obligations of TRS 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 Centurion 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 TRS
shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) Centurion shall have (i) delivered or caused to be delivered to
TRS a true and correct Account Schedule with respect to the Initial Accounts,
and (ii) performed all other obligations required to be performed by Centurion
on or before the Closing Date by the provisions of this Agreement;
(d) Centurion 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 Centurion to TRS, and
shall have provided delivery of a file-stamped copy of such financing statements
or other evidence of such filings to TRS; 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 TRS, and TRS shall have received from
Centurion copies of all documents (including records of corporate proceedings)
relevant to the transactions herein contemplated as TRS may reasonably have
requested.
Section 7.02. Conditions Precedent to Centurion's Obligations. The
obligations of Centurion 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 TRS 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
(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 Centurion, and Centurion shall have
received from TRS copies of all documents (including records
25
of company proceedings) relevant to the transactions herein contemplated as
Centurion may reasonably have requested.
[END OF ARTICLE VII]
26
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 earliest of
(i) the termination of the Trust as provided in Article IX of the Trust
Agreement, (ii) the termination of the TRS-RFC V Receivables Purchase Agreement
and (iii) the execution of a receivables purchase agreement between Centurion
and American Express Receivables Financing Corporation VI LLC or other
wholly-owned subsidiary special purpose entity, pursuant to which Centurion will
sell receivables to RFC VI or such other entity, and RFC VI or such other entity
will convey such receivables to the Trust. Thereafter this Agreement may be
terminated by the mutual agreement of the parties hereto.
Section 8.02. Purchase Termination. If (i) Centurion 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 Centurion or all or substantially all of its property, (ii)
Centurion 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) Centurion
shall be unable, or shall admit in writing its inability, to pay its debts
generally as they become due, (iv) Centurion shall make an assignment for the
benefit of its creditors or (v) Centurion shall voluntarily suspend payment of
its obligations (each, an "INSOLVENCY EVENT"); then Centurion shall immediately
cease to sell Receivables to TRS and shall promptly give notice to TRS, RFC V,
the Owner Trustee and the Indenture Trustee of such Insolvency Event.
Notwithstanding any cessation of the sale to TRS of additional Receivables,
Receivables sold to TRS prior to the occurrence of such Insolvency Event and
Collections in respect of such Receivables shall continue to be property of TRS
available for transfer by TRS to RFC V pursuant to the TRS-RFC V Receivables
Purchase Agreement and by RFC V to the Trust pursuant to the Transfer and
Servicing Agreement. To the extent that it is not clear to Centurion whether
collections relate to a Receivable that was sold to TRS or to a receivable that
Centurion has not sold to TRS, Centurion 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]
27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed orally,
but only by an instrument in writing signed by TRS and Centurion in accordance
with this Section 9.01; provided, however, that no amendment shall be effective
unless written confirmation has been received by TRS that such amendment will
not result in the reduction or withdrawal of the respective ratings of any Note
Rating Agency for any securities issued by the Trust; provided, further, that
TRS shall have delivered an Officer's Certificate of TRS, dated the date of such
action, stating that TRS reasonably believes that such action will not result in
an Event of Default or an Early Amortization 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 Note Rating
Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
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 Centurion, American Express Centurion
Bank, 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President
(facsimile: 801-945-4075), (b) in the case of TRS, American Express Travel
Related Services Company, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Secretary (facsimile: (000) 000-0000), (c) in the case of RFC V,
American Express Receivables Financing Corporation V LLC, 000 Xxxxx Xxxxxx, Xxxx
000X, Xxx Xxxx, Xxx Xxxx 00000, Attention: President (facsimile: 212-640-2417),
(d) in the case of the Indenture Trustee, The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Unit
(facsimile: 212-815-5999), and (e) in the case of the Owner Trustee, Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration (facsimile: 302-636-4140); 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 such remaining covenants, agreements, provisions and terms
of this Agreement.
Section 9.05. Assignment. Notwithstanding anything to the contrary
contained herein, other than TRS's assignment of its right, title, and interest
in, to, and under this Agreement to RFC V as contemplated by the TRS-RFC V
Receivables Purchase Agreement and Section 9.06
28
hereof, this Agreement may not be assigned by the parties hereto; provided,
however, that Centurion 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), Centurion has given ten
(10) days prior notice to TRS, RFC V, the Owner Trustee, the Indenture Trustee
and each Note Rating Agency, and (y) in the case of an assignment pursuant to
clause (b), written confirmation has been received by Centurion and TRS that
such assignment will not result in the reduction or withdrawal of the respective
ratings of any Note Rating Agency for any securities issued by the Trust.
Section 9.06. Acknowledgement and Agreement of Centurion. By
execution below, Centurion expressly acknowledges and agrees that all of TRS's
right, title, and interest in, to, and under this Agreement, including all of
TRS's right, title, and interest in and to the Purchased Assets, may be assigned
by TRS to RFC V, by RFC V to the Trust and by the Trust to the Indenture
Trustee, and Centurion consents to such assignments. Centurion further agrees
that notwithstanding any claim, counterclaim, right of setoff or defense which
it may have against TRS, due to a breach by TRS of this Agreement or for any
other reason, and notwithstanding the bankruptcy of TRS or any other event
whatsoever, Centurion shall not assert any claim on or any interest in the
Purchased Assets or take any action which would reduce or delay receipt by RFC
V, the Trust or the Indenture Trustee of Collections with respect to the
Purchased Assets. Additionally, Centurion agrees that any amounts payable by
Centurion to TRS hereunder which are to be paid by TRS to RFC V and by RFC V to
the Trust, the Indenture Trustee or the Servicer shall be paid by Centurion
directly to RFC V, the Trust, the Indenture Trustee or the Servicer, as
applicable, as assignee (or the agent of an assignee) of TRS.
Section 9.07. Further Assurances. TRS and Centurion 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, RFC V, the
Trust or the Indenture 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 TRS or Centurion, 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. RFC V, the Trust, the Owner Trustee
and the Indenture Trustee shall be considered third-party beneficiaries of this
Agreement.
29
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.
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 TRS to
RFC V pursuant to the TRS-RFC V Receivables Purchase Agreement, by RFC V to the
Trust pursuant to the Transfer and Servicing Agreement and by the Trust to the
Indenture Trustee pursuant to the Indenture.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, Centurion agrees that at no time shall it
commence, or join in commencing, a bankruptcy case or other insolvency or
similar proceeding under the laws of any jurisdiction against TRS, RFC V or the
Trust.
[END OF ARTICLE IX]
30
IN WITNESS WHEREOF, TRS and Centurion have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
date 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/ Xxxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Chief Financial Officer
EXHIBIT A
FORM OF AGGREGATE ADDITION ACCOUNT SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. [___], dated as of [__________], by and
between AMERICAN EXPRESS CENTURION BANK, a Utah industrial bank (together with
its permitted successors and assigns, "CENTURION"), and AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC., a New York corporation (together with its
permitted successors and assigns, "TRS"), pursuant to the Receivables Purchase
Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Centurion and TRS are parties to an Amended and Restated
Receivables Purchase Agreement, dated as of January 24, 2007 (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, Centurion
wishes to designate Aggregate Addition Accounts to be included as Accounts and
Centurion wishes to convey its right, title and interest in the Receivables of
such Aggregate Addition Accounts, whether existing at the Addition Cut-Off Date
or thereafter created, to TRS pursuant to the Receivables Purchase Agreement;
and
WHEREAS, TRS is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, Centurion and TRS 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 Cut-Off Date" shall mean, with respect to the Aggregate
Addition Accounts, the opening of business on [__________].
"Addition 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.
A-1
"Selection Date" shall mean [(i)] for the added accounts with the
code designation "[__]," the close of business on the cycle billing date for
such added accounts occurring in the period beginning on the close of business
on [________] and ending at the close of business on [_______] [and (ii) for the
added accounts with the code designation "[__]," the close of business on the
cycle billing date for such added accounts occurring in the period beginning on
the close of business on [________] and ending at the close of business on
[_________]].
2. Designation of Aggregate Addition Accounts. Centurion delivers or
causes to be delivered 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.
3. Conveyance of Receivables.
(a) Centurion does hereby sell, transfer, assign, set over and
otherwise convey to TRS, 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 with respect to such Aggregate
Addition Accounts), existing at the Addition Cut-Off Date and thereafter
created, all 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").
As purchaser of the Additional Purchased Assets, TRS shall have the right to
pledge, assign, transfer, sell and exercise full control over all the Additional
Purchased Assets, subject to the interests of any subsequent purchaser or
assignee of the Additional Purchased Assets.
(b) If necessary, Centurion 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 Additional 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 sale
of the Additional Purchased Assets to TRS, (ii) cause such financing statements
and amendments to name Centurion, as seller, and TRS, as purchaser, of the
Additional Purchased Assets and (iii) to deliver a file-stamped copy of such
financing statements or amendments or other evidence of such filings to TRS as
soon as is practicable after filing.
(c) Centurion shall, at its own expense, on or prior to the Addition
Date, indicate in its books and records (including its computer files) that all
Receivables created in connection with the Aggregate Addition Accounts and the
related Additional Purchased Assets have been sold to TRS pursuant to this
Supplemental Conveyance.
(d) The parties hereto intend that the conveyance of Centurion'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 Centurion to TRS. 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. 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
A-2
shall constitute a security agreement under applicable law, and that Centurion
shall be deemed to have granted, and Centurion does hereby grant, to TRS a first
priority perfected security interest in all of Centurion's right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Additional Purchased Assets to secure the obligations of Centurion hereunder and
under the Receivables Purchase Agreement.
(e) To the extent that Centurion retains any interest in the
Additional Purchased Assets, Centurion hereby grants to the Trust and the
Indenture Trustee a security interest in all of Centurion'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 Centurion hereunder and under the Receivables Purchase Agreement. With
respect to such security interest and such collateral, each of the Trust and the
Indenture Trustee shall have all of the rights that it has under the Transfer
and Servicing Agreement. Each of the Trust and the Indenture Trustee shall also
have all of the rights of a secured creditor under the UCC.
4. Acceptance by TRS. TRS hereby acknowledges that, prior to or
simultaneously with the execution and delivery of this Supplemental Conveyance,
Centurion delivered or caused to be delivered to TRS the Account Schedule
described in Section 2 of this Supplemental Conveyance with respect to all
Aggregate Addition Accounts.
5. Representations and Warranties of Centurion. Centurion 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 GOVERNED BY
AND 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, Centurion and TRS 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 CENTURION BANK
By:
--------------------------------------
Name:
Title:
AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC.
By:
--------------------------------------
Name:
Title:
A-4
Schedule 1 to
Supplemental
Conveyance
AGGREGATE ADDITION ACCOUNTS
A-5
EXHIBIT B
FORM OF SUPPLEMENTAL CONVEYANCE FOR NEW ACCOUNTS
(As required by Section 2.03 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. [___], dated as of the Addition Date set
forth below, by and between AMERICAN EXPRESS CENTURION BANK, a Utah industrial
bank (together with its permitted successors and assigns, "CENTURION"), and
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York corporation
(together with its permitted successors and assigns, "TRS"), pursuant to the
Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Centurion and TRS are parties to an Amended and Restated
Receivables Purchase Agreement, dated as of January 24, 2007 (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, Centurion
wishes to designate New Accounts to be included as Accounts and Centurion wishes
to convey its right, title and interest in the Receivables of such New Accounts,
whether existing at the Addition Cut-Off Date or thereafter created, to TRS
pursuant to the Receivables Purchase Agreement; and
WHEREAS, TRS is willing to accept such designation and conveyance
subject to the terms and conditions hereof.
NOW, THEREFORE, Centurion and TRS 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 Cut-Off Date" shall mean, with respect to each New
Account, the date on which such New Account is originated.
"Addition Date" shall mean, with respect to the New Accounts,
[---------].
"Additional Purchased Assets" shall have the meaning set forth in
Subsection 3(a).
"New Account Delivery Date" shall mean the fifteenth calendar day of
the month (or, if such fifteenth calendar day is not a Business Day, the next
succeeding Business Day) following the Monthly Period in which the Addition Date
occurs.
B-1
"New Accounts" shall mean the New Accounts, as defined in the
Receivables Purchase Agreement, that are designated hereby and to be listed on
SCHEDULE 1 hereto.
"Selection Date" shall mean, with respect to each New Account, the
date on which such New Account is originated.
2. Designation of New Accounts. The New Accounts are designated
hereby. On the New Account Delivery Date, Centurion shall deliver or cause to be
delivered an Account Schedule containing a true and complete list of the New
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.
3. Conveyance of Receivables.
(a) Centurion does hereby sell, transfer, assign, set over and
otherwise convey to TRS, 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 New Accounts
(including Related Accounts with respect to such New Accounts), existing at the
applicable Addition Cut-Off Date of each New Account and thereafter created, all
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"). As purchaser of the
Additional Purchased Assets, TRS shall have the right to pledge, assign,
transfer, sell and exercise full control over all the Additional Purchased
Assets, subject to the interests of any subsequent purchaser or assignee of the
Additional Purchased Assets.
(b) If necessary, Centurion 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 Additional 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 sale
of the Additional Purchased Assets TRS, (ii) cause such financing statements and
amendments to name Centurion, as seller, and TRS, as purchaser, of the
Additional Purchased Assets and (iii) to deliver a file-stamped copy of such
financing statements or amendments or other evidence of such filings to TRS as
soon as is practicable after filing.
(c) Centurion shall, at its own expense, on or prior to the Addition
Date, indicate in its books and records (including its computer files) that all
Receivables created in connection with the New Accounts and the related
Additional Purchased Assets have been sold to TRS pursuant to this Supplemental
Conveyance.
(d) The parties hereto intend that the conveyance of Centurion'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 Centurion to TRS. 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. 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 Centurion shall be deemed to have
B-2
granted, and Centurion does hereby grant, to TRS a first priority perfected
security interest in all of Centurion's right, title and interest, whether now
owned or hereafter acquired, in, to and under the Additional Purchased Assets to
secure the obligations of Centurion hereunder and under the Receivables Purchase
Agreement.
(e) To the extent that Centurion retains any interest in the
Additional Purchased Assets, Centurion hereby grants to the Trust and the
Indenture Trustee a security interest in all of Centurion'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 Centurion hereunder and under the Receivables Purchase Agreement. With
respect to such security interest and such collateral, each of the Trust and the
Indenture Trustee shall have all of the rights that it has under the Transfer
and Servicing Agreement. Each of the Trust and the Indenture Trustee shall also
have all of the rights of a secured creditor under the UCC.
4. Acceptance by TRS. TRS hereby acknowledges that, on the New
Account Delivery Date, Centurion has agreed to deliver or cause to be delivered
to TRS the Account Schedule described in Section 2 of this Supplemental
Conveyance with respect to all New Accounts.
5. Representations and Warranties of Centurion. Centurion
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 New 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 GOVERNED BY
AND 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.
B-3
IN WITNESS WHEREOF, Centurion and TRS 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 CENTURION BANK
By:
--------------------------------------
Name:
Title:
AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC.
By:
--------------------------------------
Name:
Title:
B-4
Schedule 1 to
Supplemental
Conveyance
NEW ACCOUNTS
I-1
Schedule 1
LIST OF ACCOUNTS
I-2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
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 Aggregate Addition Accounts..................... 11
Section 2.03. Addition of New Accounts.................................... 12
Section 2.04. Removal and Deletion of Accounts............................ 13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.............................................. 15
Section 3.02. Adjustments to Purchase Price............................... 15
Section 3.03. Use of Name, Logo and Marks................................. 15
Section 3.04. Servicing of Receivables.................................... 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of Centurion
Relating to Centurion....................................... 17
Section 4.02. Representations and Warranties of Centurion
Relating to the Agreement and the Receivables............... 18
Section 4.03. Representations and Warranties of TRS....................... 19
ARTICLE V
COVENANTS
Section 5.01. Covenants of Centurion...................................... 21
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables...................... 23
Section 6.02. Reassignment of Other Receivables........................... 23
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to TRS's Obligations Regarding Initial
Receivables................................................. 25
Section 7.02. Conditions Precedent to Centurion's Obligations............. 25
i
TABLE OF CONTENTS
CONTINUED
PAGE
----
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term........................................................ 27
Section 8.02. Purchase Termination........................................ 27
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment................................................... 28
Section 9.02. Governing Law............................................... 28
Section 9.03. Notices..................................................... 28
Section 9.04. Severability of Provisions.................................. 28
Section 9.05. Assignment.................................................. 28
Section 9.06. Acknowledgement and Agreement of Centurion.................. 29
Section 9.07. Further Assurances.......................................... 29
Section 9.08. No Waiver; Cumulative Remedies.............................. 29
Section 9.09. Counterparts................................................ 29
Section 9.10. Binding; Third-Party Beneficiaries.......................... 29
Section 9.11. Merger and Integration...................................... 30
Section 9.12. Headings.................................................... 30
Section 9.13. Schedules and Exhibits...................................... 30
Section 9.14. Survival of Representations and Warranties.................. 30
Section 9.15. Nonpetition Covenant........................................ 30
EXHIBIT A: FORM OF SUPPLEMENTAL CONVEYANCE FOR AGGREGATE
ADDITION ACCOUNTS................................................. A-1
EXHIBIT B: FORM OF SUPPLEMENTAL CONVEYANCE FOR NEW
ACCOUNTS.......................................................... B-1
SCHEDULE 1: LIST OF ACCOUNTS...................................... I-1
ii
