Exhibit 4.2
EXECUTION COPY
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AMERICAN EXPRESS ISSUANCE TRUST
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS BANK, FSB
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 BANK, FSB, a federal savings bank
(together with its permitted successors and assigns, "FSB") 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 FSB;
WHEREAS, FSB 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, FSB agrees that all representations, warranties, covenants and
agreements made by FSB herein with respect to the Accounts and the Receivables
shall also be for the benefit of RFC V, the Trust, the Owner Trustee, the
Indenture Trustee and the Noteholders (each capitalized term as hereinafter
defined);
WHEREAS, FSB and TRS previously entered into the Receivables Purchase
Agreement, dated as of May 19, 2005 (the "ORIGINAL AGREEMENT"); and
WHEREAS, FSB and TRS hereto desire to amend and restate the Original
Agreement.
NOW, THEREFORE, it is hereby agreed by and between FSB 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 FSB (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
FSB 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 FSB 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
FSB, (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 FSB 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.
"Aggregate Addition Account Supplemental Conveyance" shall have the meaning
specified in Subsection 2.02(b).
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"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 FSB 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.
"Eligible Account" shall mean each charge account established pursuant to
an Account Agreement between FSB and any Person, which meets the following
requirements as of the applicable Selection Date:
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(a) is a charge account in existence and maintained with FSB;
(b) is payable in United States dollars;
(c) has not been identified by FSB 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 FSB to any other party;
(g) does not have any receivables that have been sold or pledged by FSB 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 FSB 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
FSB 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 FSB (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 FSB and pursuant to an Account Agreement that
complies in all material respects with all Requirements of Law applicable to
FSB, in either case, the failure to comply with which would have a material
adverse effect on 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 FSB of
the Account Agreement pursuant to which such Receivable was created, have been
duly obtained, effected or given and are in full force and effect;
(d) as to which, immediately prior to the sale of such Receivable to TRS,
FSB has good and marketable title thereto, free and clear of all Liens (other
than any Lien for municipal or other local taxes of FSB if such taxes are not
then due and payable or if FSB is then contesting the
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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 FSB to
TRS of all FSB'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 FSB'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, FSB has
satisfied all its obligations required to be satisfied by such time;
(j) as to which, at the time of the sale of such Receivable to TRS, FSB 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 FSB and any Person, which account is identified in the
Account Schedule delivered or caused to be delivered by FSB 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 FSB 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 FSB 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 FSB 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 FSB 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 FSB (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 FSB used to generate the
Account Schedule.
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"Removed Account" shall mean any Account as to which FSB 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 FSB 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.
"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.
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"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, FSB 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 FSB 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 FSB 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 FSB 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 FSB and
purchased by TRS on the date such Receivables arise.
(b) FSB shall (i) record and file, at its own expense, any financing
statements (and amendments with respect to such financing statements when
applicable) with respect to the Purchased Assets meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the Conveyance of such Purchased Assets
from FSB to TRS, (ii) cause such financing statements and amendments to name
FSB, 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) FSB shall, at its own expense, (i) on or prior to (x) the Closing Date,
in the case of Initial Accounts, and (y) the applicable Addition Date, in the
case of Additional Accounts, indicate in its books and records (including its
computer files) that Receivables created in connection with such Accounts and
the related Purchased Assets have been sold to 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
respect of
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New Accounts on the New Account Delivery Date) containing a true and complete
list of all such Accounts. FSB shall not alter the indication referenced in
clause (i) of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account is no longer an Account or FSB has taken
such action as is necessary or advisable to cause the interest of 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 FSB 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 FSB not later than semi-annually to include any new Related Accounts.
(d) The parties hereto intend that the conveyance of FSB's right, title and
interest in and to the Purchased Assets shall constitute an absolute sale,
conveying good title free and clear of any liens, claims, encumbrances or rights
of others, from FSB to 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 FSB shall be deemed to have
granted, and FSB does hereby grant, to TRS a first priority perfected security
interest in all of FSB's right, title and interest, whether now owned or
hereafter acquired, in, to and under the Purchased Assets to secure the
obligations of FSB hereunder.
(e) To the extent that FSB retains any interest in the Purchased Assets,
FSB hereby grants to the Trust and the Indenture Trustee a security interest in
all of FSB's right, title and interest, whether now owned or hereafter acquired,
in, to and under the Purchased Assets, to secure the performance of all of the
obligations of FSB hereunder. With respect to such security interest and such
collateral, the 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 FSB 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, FSB 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, FSB may designate
Eligible Accounts as Aggregate Addition Accounts and sell to TRS the Purchased
Assets related to such Aggregate Addition Accounts. In either event, FSB 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 FSB's right, title and interest in, to and under the
Receivables in such Aggregate Addition Accounts and
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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) FSB 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, FSB, 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 FSB 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 FSB, have a
material adverse effect on TRS;
(vi) FSB shall have delivered to TRS an Officer's Certificate of FSB,
dated the Addition Date, confirming, to the extent applicable and in FSB's
reasonable belief, the items set forth in clauses (i) through (v) above;
(vii) FSB 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) FSB 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 FSB and TRS, subject to compliance by FSB
with Subsection 2.03(b), FSB may designate newly originated Eligible Accounts to
be included as New Accounts and sell to TRS the Purchased Assets related to such
New Accounts. FSB 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 FSB's right, title and interest in, to and under the Receivables in
such New Accounts (and such New Accounts shall be deemed to be Accounts for
purposes of this Agreement) upon satisfaction of the following conditions:
12
(i) as of the applicable Selection Date, each New Account shall be an
Eligible Account;
(ii) on such Addition Date, FSB 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, FSB, 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 FSB 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 FSB, have a
material adverse effect on TRS;
(vi) on such Addition Date, FSB shall have delivered to TRS an
Officer's Certificate of FSB, dated such Addition Date, confirming, to the
extent applicable and in FSB's reasonable belief, the items set forth in
clauses (i) through (v) above;
(vii) on such Addition Date, FSB 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, FSB 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, FSB 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 FSB 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 FSB whether
Collections relate to a Receivable that was sold to TRS or to a receivable that
FSB did not sell to TRS, FSB shall allocate payments on each such Removed
Account with respect to the principal balance of such Removed Account first to
the oldest principal balance of such Removed Account.
(b) On and after the Stop Date for a Removed Account, FSB may xxxx its
books and records to indicate that such Account is a Removed Account, but FSB
shall not (i) alter
13
the indication referenced in clause (i) of Subsection 2.01(c) with respect to
such Removed Account unless and until such Account becomes a Deleted Account or
FSB has taken such action as is necessary or advisable to cause the interest of
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, FSB 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]
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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 FSB 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 FSB 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 FSB 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 FSB 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, FSB shall not
be obligated to continue to sell Receivables or other Purchased Assets to TRS to
the extent that FSB is not paid the Purchase Price therefor as provided herein.
Section 3.02. Adjustments to Purchase Price. The Purchase Price
shall be reduced (a "PURCHASE PRICE ADJUSTMENT") on the Purchase Price Payment
Date with respect to any Receivable previously conveyed to TRS by FSB which is
reduced by FSB 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 FSB) 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
FSB 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, FSB agrees that, on the Purchase Price Payment
Date, FSB 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. FSB does hereby grant to
TRS a non-exclusive license to use the name "American Express Bank, FSB" and all
related identifying
15
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 FSB shall not be responsible for the payment of any fees for servicing the
Purchased Assets sold by FSB to TRS under this Agreement.
[END OF ARTICLE III]
16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of FSB Relating to FSB.
(a) Representations and Warranties. FSB hereby represents and
warrants to, and agrees with, TRS as of the Closing Date and on each Addition
Date, that:
(i) Organization and Good Standing. FSB is a federal savings bank
validly existing under the laws of the United States of America, and has,
in all material respects, full power and authority to own its properties
and conduct its business as presently owned or conducted, and to execute,
deliver and perform its obligations under this Agreement.
(ii) Due Qualification. FSB is duly qualified to do business and is
in good standing as a foreign corporation or other entity and has obtained
all necessary licenses and approvals, in each jurisdiction in which
failure to so qualify or to obtain such licenses and approvals would have
a material adverse effect on this Agreement or the transactions
contemplated hereby or on the ability of FSB to perform its obligations
under this Agreement.
(iii) Due Authorization. The execution and delivery by FSB of this
Agreement and any other document or instrument delivered by FSB pursuant
hereto, including any Supplemental Conveyance, to which FSB is a party and
the consummation by FSB of the transactions provided for in this Agreement
and any such Supplemental Conveyance, have been duly authorized by FSB by
all necessary action on the part of FSB.
(iv) No Conflict or Violation. The execution and delivery by FSB of
this Agreement, the performance by FSB of the transactions contemplated by
this Agreement and the fulfillment by FSB of the terms of this Agreement
applicable to FSB, will not conflict with or violate any Requirements of
Law applicable to FSB or conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which FSB is a
party or by which it or its properties are bound.
(v) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of FSB threatened, against FSB before
any Governmental Authority (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling
that, in the reasonable judgment of FSB, would materially and adversely
affect the performance by FSB of its obligations under this Agreement or
(iv) seeking any determination or ruling that, in the reasonable judgment
of FSB, would materially and adversely affect the validity or
enforceability of this Agreement.
(vi) All Consents. All authorizations, consents, orders or approvals
of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by FSB in connection with the
execution and delivery by FSB of this
17
Agreement and the performance by FSB of the transactions contemplated by
this Agreement have been duly obtained, effected or given and are in full
force and effect.
(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 FSB 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 FSB Relating to the
Agreement and the Receivables.
(a) Representations and Warranties. FSB 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 FSB enforceable against FSB in accordance with its terms,
except as such enforceability may be limited by applicable Debtor Relief
Laws or general principles of equity;
(ii) (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 FSB if such taxes are not then due and payable or if FSB is then
contesting the validity thereof in good faith by appropriate proceedings
and has set aside on its books adequate reserves with respect thereto);
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by FSB in connection with the conveyance of
Receivables to 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 FSB 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 FSB is an Eligible
Receivable;
(viii) as of the date of the creation of any new Receivable sold to
TRS by FSB, such Receivable is an Eligible Receivable; and
(ix) no selection procedures believed by FSB 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 FSB 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. FSB 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 FSB,
and FSB 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, FSB 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 FSB 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 FSB. FSB 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, FSB 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 FSB, it shall be deemed to be a Receivable described in
Subsection 6.01(a) and shall be reassigned to FSB in accordance with Subsection
6.01(b).
(b) Security Interests. Except for the conveyances hereunder, FSB
will not sell, pledge, assign or transfer to any other Person, or take any other
action inconsistent with TRS's ownership of, the Purchased Assets, or grant,
create, incur, assume or suffer to exist any Lien arising through or under FSB
on any Purchased Asset or any interest therein (other than any Lien for
municipal or other local taxes of FSB if such taxes are not then due and payable
or if FSB is then contesting the validity thereof in good faith by appropriate
proceedings and has set aside on its books adequate reserves with respect
thereto), and FSB shall not claim any ownership interest in any Purchased Asset
and shall defend the right, title and interest of TRS in, to and under the
Purchased Assets against all claims of third parties claiming through or under
FSB.
(c) Account Allocations. If a Transfer Restriction Event occurs, FSB
agrees (except as prohibited by any such order or any Requirement of Law) to
allocate and pay to 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 FSB whether collections relate to a Receivable that was
sold to TRS or to a receivable that FSB is unable to sell to TRS, FSB agrees
that it shall allocate payments on each Account with respect to the principal
balance of such Account first to the oldest principal balance of such Account.
Notwithstanding any cessation of the sale to 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 FSB receives
Collections or any other amounts in respect of the Purchased Assets sold to TRS
hereunder, FSB 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. FSB shall notify TRS promptly after becoming
aware of any Lien arising through or under FSB on any Purchased Asset other than
the conveyances hereunder.
(f) Documentation of Transfer. FSB shall timely file in all
appropriate filing offices the documents which are necessary or advisable to
perfect and maintain the perfection of the sale of the Purchased Assets to TRS.
21
(g) Account Agreements and Guidelines. Subject to compliance with
all Requirements of Law, FSB 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 FSB 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 FSB and an unrelated third
party or by the terms of the Account Agreements. Notwithstanding the above,
unless required by Requirements of Law, FSB will not take any action with
respect to such Account Agreements or such Account Guidelines which, at the time
of such action, FSB reasonably believes will have a material adverse effect on
TRS.
(h) Name and Type and Jurisdiction of Organization. FSB shall not
change its name or its type or jurisdiction of organization without previously
having delivered to 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, FSB 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 FSB to TRS pursuant
to this Agreement, FSB shall accept reassignment of such Receivables on the
terms and conditions set forth in Subsection 6.01(b).
(b) FSB shall accept reassignment of any Receivables described in
Subsection 6.01(a) from 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
FSB, 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 FSB to effect the conveyance of such Receivables and other property
pursuant to this Subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in
Subsection 4.01(a)(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 FSB to TRS
pursuant to this Agreement, FSB shall accept a reassignment of such Receivables
on the terms and conditions set forth in Subsection 6.02(b).
(b) FSB 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 FSB, 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.
23
TRS shall execute such documents and instruments of transfer or assignment and
take such other actions as shall reasonably be requested by FSB to effect the
conveyance of such Receivables and other property pursuant to this Subsection.
[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 FSB contained in this
Agreement shall be true and correct on the Closing Date with the same effect as
though such representations and warranties had been made on such date (except
that, to the extent any such representation or warranty expressly relates to an
earlier date, such representation or warranty was true and correct on such
earlier date);
(b) all information concerning the Initial Accounts provided to TRS
shall be true and correct as of the Initial Cut-Off Date in all material
respects;
(c) FSB 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 FSB on or before the
Closing Date by the provisions of this Agreement;
(d) FSB shall have recorded and filed, at its expense, any financing
statement with respect to the Purchased Assets meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect the sale of the Purchased Assets from FSB to 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 FSB
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 FSB's Obligations. The
obligations of FSB to sell the Receivables in the Initial Accounts on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) all representations and warranties of 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 FSB, and FSB shall have received from TRS
copies of all documents (including records of company
25
proceedings) relevant to the transactions herein contemplated as FSB 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 FSB and
American Express Receivables Financing Corporation VI LLC or other wholly-owned
subsidiary special purpose entity, pursuant to which FSB 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) FSB shall file a petition
or commence a Proceeding (A) to take advantage of any bankruptcy,
conservatorship, receivership, insolvency, or similar laws or (B) for the
appointment of a trustee, conservator, receiver, liquidator, or similar official
for or relating to FSB or all or substantially all of its property, (ii) FSB
shall consent or fail to object to any such petition filed or Proceeding
commenced against or with respect to it or all or substantially all of its
property, or any such petition or Proceeding shall not have been dismissed
within sixty (60) days of its filing or commencement, or a court, agency, or
other supervisory authority with jurisdiction shall have decreed or ordered
relief with respect to any such petition or Proceeding, (iii) FSB shall be
unable, or shall admit in writing its inability, to pay its debts generally as
they become due, (iv) FSB shall make an assignment for the benefit of its
creditors or (v) FSB shall voluntarily suspend payment of its obligations (each,
an "INSOLVENCY EVENT"); then FSB shall immediately cease to sell 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 FSB whether collections relate to a Receivable that was
sold to TRS or to a receivable that FSB has not sold to TRS, FSB agrees that it
shall allocate payments on each Account with respect to the principal balance of
such Account first to the oldest principal balance of such Account.
[END OF ARTICLE VIII]
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 FSB 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 FSB, American Express Bank, FSB, 0000
Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: President (facsimile:
801-945-4050), (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 hereof, this Agreement may not
be assigned by the parties hereto; provided, however, that FSB shall
28
have the right to assign its right, title and interest in, to and under this
Agreement to (a) any successor by merger assuming this Agreement or (b) to any
other entity; provided, further, that (x) in the case of an assignment pursuant
to clauses (a) and (b), FSB has given ten (10) days prior notice to 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 FSB 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 FSB. By execution
below, FSB 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 FSB consents
to such assignments. FSB 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, FSB 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, FSB agrees that any amounts
payable by FSB 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 FSB
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 FSB agree to do and
perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other party, 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 FSB, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
Section 9.09. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
Section 9.10. Binding; Third-Party Beneficiaries. This Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns. RFC V, the Trust, the Owner Trustee
and the Indenture Trustee shall be considered third-party beneficiaries of this
Agreement.
Section 9.11. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject
29
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, FSB 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 FSB 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 BANK, FSB
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer and 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 BANK, FSB, a federal savings bank (together with its
permitted successors and assigns, "FSB"), 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, FSB 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, FSB wishes
to designate Aggregate Addition Accounts to be included as Accounts and FSB
wishes to convey its right, title and interest in the Receivables of such
Aggregate Addition Accounts, whether existing 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, FSB 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. FSB 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) FSB 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, FSB shall (i) record and file, at its own expense,
any financing statements (and amendments with respect to such financing
statements when applicable) with respect to the 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 FSB, 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) FSB 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 FSB's right,
title and interest in and to the Additional Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from FSB to 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 FSB shall
be deemed to have granted, and FSB does hereby grant, to TRS a first priority
perfected security interest in all of FSB's right, title and interest, whether
now owned or hereafter acquired, in, to and under the Additional Purchased
Assets to secure the obligations of FSB hereunder and under the Receivables
Purchase Agreement.
(e) To the extent that FSB retains any interest in the Additional
Purchased Assets, FSB hereby grants to the Trust and the Indenture Trustee a
security interest in all of FSB's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Additional Purchased Assets, to
secure the performance of all of the obligations of FSB hereunder and under the
Receivables Purchase Agreement. With respect to such security interest and such
collateral, 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,
FSB 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 FSB. FSB hereby acknowledges on
the Addition Date that it makes the representations and warranties in Sections
4.01 and 4.02 of the Receivables Purchase Agreement with respect to the
Aggregate Addition Accounts.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented and amended by this Supplemental Conveyance.
Except as expressly amended hereby, all the representations, warranties, terms,
covenants and conditions of the Receivables Purchase Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms and, except as expressly provided herein, shall not
constitute or be deemed to constitute a waiver of compliance with or consent to
non-compliance with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument.
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE 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, FSB 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 BANK, FSB
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 BANK, FSB, a federal savings bank
(together with its permitted successors and assigns, "FSB"), 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, FSB 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, FSB wishes
to designate New Accounts to be included as Accounts and FSB 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, FSB 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.
"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.
B-1
"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, FSB 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) FSB 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, FSB shall (i) record and file, at its own expense,
any financing statements (and amendments with respect to such financing
statements when applicable) with respect to the 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 FSB, 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) FSB 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 FSB's right,
title and interest in and to the Additional Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from FSB to 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 FSB shall be
deemed to have granted, and FSB does hereby grant, to TRS a first priority
perfected security interest in all of FSB's right, title and interest, whether
now owned or hereafter acquired, in, to and under the Additional
B-2
Purchased Assets to secure the obligations of FSB hereunder and under the
Receivables Purchase Agreement.
(e) To the extent that FSB retains any interest in the Additional
Purchased Assets, FSB hereby grants to the Trust and the Indenture Trustee a
security interest in all of FSB's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Additional Purchased Assets, to
secure the performance of all of the obligations of FSB hereunder and under the
Receivables Purchase Agreement. With respect to such security interest and such
collateral, 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, FSB 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 FSB. FSB hereby acknowledges on
the Addition Date that it makes the representations and warranties in Sections
4.01 and 4.02 of the Receivables Purchase Agreement with respect to the 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, FSB 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 BANK, FSB
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 FSB Relating to FSB....................... 17
Section 4.02. Representations and Warranties of FSB 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 FSB............................................................ 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 FSB'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 FSB........................................ 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...................................................... 29
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
