Exhibit 4.2
FIRST AMENDMENT TO
AMENDED AND RESTATED MASTER
POOLING AND SERVICING AGREEMENT
This FIRST AMENDMENT TO THE AMENDED AND RESTATED MASTER
POOLING AND SERVICING AGREEMENT, dated as of October 1, 2001 (this "Amendment"),
is among American Express Centurion Bank (the "Bank"), American Express
Receivables Financing Corporation ("RFC"), American Express Travel Related
Services Company, Inc. (the "Servicer") and The Bank of New York, (the
"Trustee"). This Amendment amends the Amended and Restated Master Pooling and
Servicing Agreement, dated as of May 1, 1998 (the "Pooling and Servicing
Agreement" and, together with this Amendment, the "Amended Pooling and Servicing
Agreement").
RECITALS
1. Pursuant to Section 13.01(b) of the Pooling and Servicing
Agreement, the Servicer has delivered to the Trustee an Opinion of Counsel,
dated the date of this Amendment, stating that this Amendment will not
materially and adversely affect the interests of the Investor Certificateholders
of any outstanding Series.
2. The parties to the Pooling and Servicing Agreement have
satisfied all conditions precedent contained in the Pooling and Servicing
Agreement to entering into this Amendment. All capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement.
3. Now, therefore, in consideration of the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each party hereto agrees as follows:
AMENDMENTS
SECTION 1. Amendments of Section 1.01. (a) Section 1.01 of the
Pooling and Servicing Agreement shall be and hereby is amended by deleting the
current definition of Determination Date and inserting in its place the
following definition, which shall read in its entirety as follows:
"Determination Date" shall mean, unless otherwise specified in
the Supplement for a particular Series, the earlier of the third
Business Day and the fifth calendar day (or if the fifth calendar day
is not a Business Day, then the preceding Business Day) preceding each
Distribution Date.
(b) Section 1.01 of the Pooling and Servicing Agreement shall
be and hereby is amended by adding the following definition, which shall read in
its entirety as follows:
"First Amendment Effective Date" means April 1, 2001.
(c) Section 1.01 of the Pooling and Servicing Agreement shall
be and hereby is amended by adding the following definition, which shall read in
its entirety as follows:
"Permitted Activities" means the primary activities of the
Trust, which are:
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(a) holding Receivables transferred from the Transferors and
the other assets of the Trust, including passive derivative financial
instruments that pertain to beneficial interests issued or sold to
parties other than the Transferors, their Affiliates or their agents;
(b) issuing Certificates and other interests in the Trust
Property;
(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms of this
Agreement and any Supplement; and
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes, which activities
cannot be contrary to the status of the Trust as a qualified special
purpose entity under existing accounting literature.
SECTION 2. Amendment of Section 9.02. Section 9.02(a) of the
Pooling and Servicing Agreement shall be and hereby is amended by deleting the
second and third sentences thereof in their entirety, and inserted in their
place shall be the following:
Within 15 days of the receipt by the Trustee of the notice of a
Dissolution Event, the Trustee shall (i) publish a notice in an
Authorized Newspaper that a Dissolution Event has occurred and that the
Trustee intends to sell, dispose of or otherwise liquidate the
Receivables and (ii) send written notice to the Investor
Certificateholders describing the provisions of this Section 9.02 and
requesting instructions from such Holders, which notice shall request
each Investor Certificateholder to advise the Trustee in writing that
it elects one of the following options: (A) the Investor
Certificateholder wishes the Trustee to instruct the Servicer not to
sell, dispose of or otherwise liquidate the Receivables, or (B) the
Investor Certificateholder wishes the Trustee to instruct the Servicer
to sell, dispose of or otherwise liquidate the Receivables and to
instruct the Servicer to reconstitute the Trust upon the same terms and
conditions set forth herein, or (C) the Investor Certificateholder
refuses to advise the Trustee as to the specific action the Trustee
shall instruct the Servicer to take. If after 90 days from the day
notice pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received written
instructions of Holders of Investor Certificates representing Undivided
Interests aggregating in excess of 50% of the related Invested Amount
of each Series (or in the case of a series having more than one class
of investor certificates, each class of such series) to the effect that
the Trustee shall not instruct the Servicer to sell, dispose of, or
otherwise liquidate the Receivables and to instruct the Servicer to
reconstitute the Trust upon the same terms and conditions as set forth
herein, the Trustee shall instruct the Servicer to proceed to use its
best efforts to sell, dispose of, or otherwise liquidate the
Receivables, which efforts shall include the solicitation of
competitive bids and the Servicer shall proceed to use its best efforts
to consummate the sale, liquidation or disposition of the Receivables
as provided above on terms equivalent to the best purchase offer for
the Receivables.
SECTION 3. Amendments of Section 13.01. (a) Section 13.01(b)
of the Pooling and Servicing Agreement shall be and hereby is amended by adding
at the end of such Section the following, which shall read in its entirety as
follows:
; provided further that such action shall not effect a change in the
Permitted Activities of the Trust except for those changes necessary
for compliance with accounting requirements or tax requirements or
required to cure any ambiguity or correct or supplement any provision
contained in the Agreement or any Supplement which may be defective or
inconsistent with any provisions thereof.
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(b) Section 13.01(c) of the Pooling and Servicing Agreement
shall be and hereby is amended by inserting after the word "Trustee" is first
used the following, which shall read in its entirety as follows:
(A) in the case of a change in the Permitted Activities of the Trust
which is not materially adverse to Holders of Investor Certificates,
with the consent of Holders of Investor Certificates evidencing not
less than 50% of the aggregated unpaid principal amount of the Investor
Certificates of each outstanding Series affected by such change, unless
such change is necessary for compliance with accounting requirements or
tax requirements or required to cure any ambiguity or correct or
supplement any provision contained in the Agreement or any Supplement
which may be defective or inconsistent with any provisions thereof and
(B) in all other cases
SECTION 4. Miscellaneous. The amendments provided for by this
Amendment shall be effective as of the First Amendment Effective Date upon
receipt by the Trustee of the following:
(a) Notification in writing from each of Xxxxx'x and Standard
& Poor's to the effect that this Amendment will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is a
Rating Agency.
(b) An Opinion of Counsel to the effect that this Amendment
will not materially and adversely affect the interests of the Investor
Certificateholders of any outstanding Series.
(c) An Opinion of Counsel to the effect that this Amendment
will not cause the Trust to be characterized for Federal income tax purposes as
an association taxable as a corporation or otherwise have any material adverse
impact on the Federal income taxation of any outstanding Series of Investor
Certificates or any Certificate Owner.
(d) Counterparts of this Amendment, duly executed by the
parties hereto.
SECTION 5. Pooling and Servicing Agreement in Full Force and
Effect as Amended. The Pooling and Servicing Agreement is hereby amended by
providing that all references therein to the "Pooling and Servicing Agreement,"
"this Agreement," "hereby," "hereof" and "herein" shall be deemed from and after
the effective date of this Amendment to be a reference to the Amended Pooling
and Servicing Agreement. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Pooling and
Servicing Agreement shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with their terms and except as
expressly provided herein, this Amendment 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 Pooling and Servicing Agreement.
SECTION 6. Counterparts. This Amendment 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 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the Bank, RFC, the Servicer and the
Trustee have caused this Amendment to be duly executed and delivered by their
respective duly authorized officers as of the day and year first written above.
AMERICAN EXPRESS CENTURION BANK
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
