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AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
Seller of the Receivables
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION
Purchaser of the Receivables
RECEIVABLE PURCHASE AGREEMENT
Dated as of June 30, 1992
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This Receivable Purchase Agreement (the "Agreement") is entered into
as of June 30, 1992 by and between American Express Receivables Financing
Corporation, a corporation organized and existing under the laws of the State
of Delaware ("RFC"), and American Express Travel Related Services Company,
Inc., a corporation organized and existing under the laws of the State of New
York (the "Seller").
Background
The following statements are the mutual representations of the parties
with respect to certain factual matters forming the basis for this Agreement
and are an integral part of this Agreement.
A. Receivables. The Seller owns the receivables (the "Receivables") of
certain consumer charge card accounts (the "Accounts") meeting eligibility
criteria (the "Eligibility Criteria") set forth in a Master Pooling and
Servicing Agreement, dated as of June 30, 1992 (the "Pooling and Servicing
Agreement"), by and among RFC, as Transferor, American Express Travel Related
Services Company, Inc., as Servicer, and The Bank of New York, as Trustee, The
Receivables include the right to receive all monies due and to become due and
all amounts received with respect thereto in respect of each Account received
on or after June 30, 1992 (the "Cut Off Date") until termination of this
Agreement pursuant to Section 20 hereof. Accounts include (i) the consumer
charge card accounts so indicated on Schedule I hereto referred to below (the
"Initial Accounts") and (ii) certain consumer charge card accounts that will
become Accounts that will be designated as Additional Accounts pursuant to
Section 2.06 of the Pooling and Servicing Agreement.
B. Transfer of Receivables. The parties desire that the Seller sell
the Receivables in the Initial Accounts to RFC pursuant to the terms of this
Agreement. Pursuant to the terms of the Pooling and Servicing Agreement, RFC
shall transfer the Receivables in the Accounts sold to RFC by the Seller to the
American Express Master Trust (the "Trust").
C. Definitions. Capitalized terms not specifically defined in this
Agreement that are defined in the Pooling and Servicing Agreement shall have
the same meaning when used herein as when used in the Pooling and Servicing
Agreement.
Statement of Agreement
The parties, each in consideration of the promises of the other and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, hereby agree as follows:
Section 1. Sale of the Receivables.
(a) By execution of this Agreement, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to RFC, without recourse
(except as specifically provided herein), all of its right, title and interest
in, to and under the Receivables, now existing and hereafter created, all
monies due or to become due with respect thereto (including Recoveries) on and
after the Cut Off Date and all proceeds of the Receivables. The foregoing sale,
transfer, assignment, set-over and conveyance does not constitute and is not
intended to result in a
creation or an assumption by RFC of any obligation of the Seller or Servicer or
any other Person in connection with the Accounts, the Receivables or under any
agreement or instrument relating thereto, including, without limitation, any
obligation to any Obligors, merchant banks, and any affiliate thereof, or
insurers.
(b) In connection with such sale, the Seller agrees to record and
file, at its own expense, any financing statements (and continuation statements
with respect to such financing statements when applicable) with respect to the
Receivables now existing and hereafter created for the transfer of accounts
meeting the requirements of Relevant UCC State law in such manner and in such
jurisdictions as are necessary to perfect the sale, transfer and assignment of
the Receivables to RFC and the transfer of the Receivables to the Trust, and to
deliver a file-stamped copy of such financing statements or other evidence of
such filings to the Trustee on or prior to the date of issuance of the Series
1992-1 Certificates and Series 1992-2 Certificates issued pursuant to the
Pooling and Servicing Agreement and the Series 1992-1 Supplement and the Series
1992-2 Supplement, respectively. RFC shall be under no obligation whatsoever to
file such financing statements or make any other filings under the UCC in
connection with such conveyance. The Trustee and RFC shall be entitled to rely
upon the filings made by the Seller.
(c) In connection with such sale, the Seller further agrees, at its
own expense, on or prior to the Initial Closing Date (x) to indicate in its
books and records that all Receivables created in connection with the Accounts
have been sold to RFC pursuant to this Agreement, (y) to deliver to RFC and.
the Trustee a computer file or microfiche list containing a true and complete
list of all such Accounts specifying for each such Account, as of the Cut Off
Date, its account number and the aggregate amount of Receivables outstanding in
such Account and (z) within twenty Business Days of any request by the Trustee
or RFC, deliver to RFC and the Trustee a new computer file or microfiche list
containing a true and complete list of all Accounts identified as described in
the preceding clause (y). Such files or lists shall be marked as Schedule 1 to
this Agreement which is hereby incorporated into and made a part of this
Agreement.
(d) RFC shall not purchase Receivables if the Seller shall become an
involuntary party to (or be made the subject of) any proceeding provided for by
any federal or state bankruptcy, insolvency or other debtor relief law (an
"Involuntary Case"), other than as creditor or claimant, and such Involuntary
Case shall have continued for a period of ten Business Days from and including
the day of receipt by the Seller of notice of such Involuntary Case. During
such 10-Business Day period, RFC shall suspend its purchase of Receivables
hereunder and shall hold all Principal Collections that would have been
available to purchase Receivables in the Collection Account (if such deposits
would otherwise have been required to be made pursuant to the Pooling and
Servicing Agreement) and (a) if by the first Business Day after such
10-BusinessDay period, RFC has not obtained an order from the court having
jurisdiction of such case or filing which order approves the continuation of
the sale of Receivables hereunder by the Seller to RFC and which provides that
RFC and the Trustee may rely on such order for the validity and nonavoidance of
such transfer (the "Order"), RFC shall hold such Collections in such Collection
Account (if so required) until such time as they may be paid to holders of the
Certificates and shall not purchase Receivables thereafter for transfer to RFC,
or (b) if by such first Business Day, RFC has obtained such Order, the Seller
may continue selling Receivables, and RFC may continue purchasing Receivables,
pursuant to the terms hereof, as modified by the
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immediately succeeding sentence. During the period after the 10-Business Day
period described above and before the 90-day period following such filing, the
purchase price of the Receivables transferred during such period,
notwithstanding anything in this Agreement or the Pooling and Servicing
Agreement to the contrary, shall be paid to the Seller by RFC in cash not later
than the same Business Day of any sale of Receivables. If an order is obtained
but subsequently reversed, rescinded or expired, the Seller shall immediately
cease selling Receivables hereunder to RFC and RFC shall immediately cease
buying Receivables hereunder. If by the first Business Day after such 90-day
period, such Involuntary Case has not been dismissed, RFC shall immediately
cease purchasing Receivables hereunder.
(e) RFC shall not purchase Receivables hereunder if the Seller shall
admit in writing its inability to pay its debts as they are due, or the
commencement by the Seller of a voluntary case under the federal bankruptcy
laws, as now or hereafter in effect, or any present or future federal or state
bankruptcy, insolvency or similar law, or the consent by the Seller to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestator or other similar official of the Seller or of
any substantial part of its property or the making by the Seller of an
assignment for the benefit of creditors or the failure by the Seller generally
to pay its debts as such debt becomes due or the taking of corporate action by
the Seller in furtherance of any of the foregoing.
Section 2. Purchase Price. Except as provided in Section 3, the
purchase price for the Receivables (including Receivables in Additional
Accounts) sold to RFC under this Agreement shall be a dollar amount equal to
(1) with respect to Receivables in the Initial Accounts, the product of 90.41%
(which reflects the aging status and funding costs of the Receivables in and an
arm's length return to RFC mutually agreed by both parties) and the aggregate
unpaid balance of the Receivables on the Cut Off Date in respect of the Initial
Accounts and (2) with respect to Receivables in the Additional Accounts, the
product of a factor to be determined by the parties hereto in good faith based
on the same factors set forth above and the aggregate unpaid balance of all
Receivables in Additional Accounts on the Additional Account Cut Off Date in
respect thereof, and (3) with respect to additional Receivables created in
Accounts, the product of one minus the initial Yield Factor (as such price may
be adjusted by the Purchaser in good faith based on increases in charge-offs,
increases in the weighted average Certificate Rate for all Series, increases in
Servicing Fees or decreases in Recoveries, or subsequently adjusted downward
based on decreases in such items or increases in Recoveries), minus an arm's
length return to RFC mutually agreed by both parties and the aggregate unpaid
balance of all additional Receivables thereafter created in the Accounts. As
additional consideration for the Seller's agreement to sell the Receivables to
the Company, the Company has agreed pursuant to a loan agreement with the
Seller to loan an amount up to $47,000,000 to the Seller upon request of the
Seller, such loan to bear interest at the weighted average of the Fed Composite
30-day commercial paper rate, plus 0.15% on the outstanding principal balance
from time to time, payable upon the final payment of the Series 1992-2 Class A
Certificates.
Section 3. Capital Contribution. $20,684,993 of the Receivables sold
as of the Initial Closing Date are to be conveyed by the Seller to RFC as a
capital contribution to RFC.
Section 4. Payment of Purchase Price on the Initial Closing Date and
Additional Account Closing Date(s). The Purchase Price for Receivables shall be
paid or
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provided for on the Initial Closing Date and each Additional Account Closing
Date, as the case may be, in either of the following ways: (i) by payment in
cash in immediately available funds; or (ii) in the event that the total
Purchase Price is not paid in full in cash by RFC on the Initial Closing Date
and any Additional Account Closing Date, as the case may be, the Seller shall
convey the principal amount of such cash shortfall as a capital contribution to
RFC.
Section 5. Adjustments to Purchase Price. The Purchase Price shall be
adjusted (a "Credit Adjustment") with respect to any Receivable adjusted as
provided in subsection 3.08(a) of the Pooling and Servicing Agreement. To the
extent that RFC is required thereunder to pay to the Servicer for deposit into
the Collection Account, the Seller shall pay to RFC the amount required to be
paid to the Servicer thereunder.
Section 6. Settlement and Ongoing Payment of Purchase Price. On each
Distribution Date under the Pooling and Servicing Agreement, the Seller shall
deliver to RFC a settlement statement in substantially the form of Exhibit B
(the "Settlement Statement"), showing the aggregate Purchase Price of
Receivables conveyed to RFC during the prior Due Period, and the amount which
remains unpaid as Credit Adjustments made with respect to such prior Due Period
pursuant to Section 5 hereof. Any balance due from RFC to the Seller shall be
paid in immediately available funds or the Seller shall convey such amount as a
capital contribution to RFC and any balance due from the Seller to RFC shall be
paid in immediately available funds.
Section 7. Acceptance and Agreement by RFC.
(a) RFC hereby acknowledges its acceptance of all right, title and
interest to the property described in Section l(a) hereof. RFC further
acknowledges that, prior to or simultaneously with the execution and delivery
of this Agreement, the Seller delivered to RFC and the Trustee the computer
file or microfiche list described in clause (y) of subsection l(c) hereof.
(b) RFC hereby agrees not to disclose to any Person any of the account
numbers or other information contained in the computer files or microfiche
lists marked as Schedule i delivered to RFC by the Seller pursuant to
subsection l(c) or subsection 10(b) hereof, except as may be required by law or
to a Successor Servicer appointed pursuant to Section 10.02 of the Pooling and
Servicing Agreement. RFC agrees to take such measures as shall be reasonably
requested by the Seller to protect and maintain the security and
confidentiality of such information, and, in connection therewith, shall allow
the Seller to inspect RFC's security and confidentiality arrangements from time
to time during normal business hours. RFC shall make reasonable efforts to
provide the Seller with written notice five Business Days prior to any
disclosure pursuant to this subsection 7(b) and shall cooperate with the Seller
to seek any protective order and confidentiality agreement the Seller deems
necessary or advisable.
(c) The parties hereto intend that the Seller shall have sold,
transferred and assigned to RFC all right, title and interest of the Seller in
the Receivables and the proceeds thereof. If this Agreement does not constitute
a valid sale, transfer and assignment of all right, title and interest of the
Seller in such property despite the intent of the parties hereto, the Seller
hereby grants RFC a "security interest" (as defined in the UCC as in effect in
the Relevant UCC
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State) in such property to RFC and the parties agree that this Agreement shall
constitute a security agreement under the law in effect in the Relevant UCC
State.
(d) RFC shall maintain net worth (exclusive of any interest of RFC in
the Transferor Interest) at an amount equal to at least the greater of
$30,000,000 at 1.25% of the Trust Principal Component.
Section 8. Representations and Warranties of the Seller Relating to
the Seller. The Seller hereby represents and warrants to RFC, as of the date
hereof, that:
(a) Organization and Good Standing. The Seller is a corporation duly
organized and validly existing and in good standing under the laws of the State
of New York, and has full corporate power, authority and legal right 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 and the transactions contemplated under this
Agreement.
(b) Due Qualification. The Seller is duly qualified to do business and
is in good standing as a foreign corporation in any state required in order to
conduct its business, 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 the conduct of its business
or render any Receivables unenforceable; provided, however, that no
representation or warranty is made with respect to any qualifications, licenses
or approvals which RFC would have to obtain to do business in any state in
which RFC seeks to enforce any Account or any Receivable.
(c) Due Authorization. The execution, delivery and performance of this
Agreement by the Seller and the consummation of the transactions provided for
in this Agreement have been duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) No Violation. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, violate, 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
Requirement of Law applicable to the Seller or any material indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Seller is a party or by which it or any of its properties is bound.
(e) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of the Seller, threatened against the Seller,
before any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (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 the Seller, would materially and adversely affect
the performance by the Seller of its obligations under this Agreement, (iv)
seeking any determination or ruling that would materially
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and adversely affect the validity or enforceability of this Agreement, or (v)
seeking to affect adversely the Federal or State of New York income tax
attributes of the Trust.
(f) Eligibility of Accounts. As of the Selection Date, each Account
was an Eligible Account.
(g) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by the Seller of this Agreement,
the performance by the Seller of the transactions contemplated by this
Agreement and the fulfillment by the Seller of the terms hereof have been
obtained.
(h) Amount of Receivables; Computer File. As of the Cut Off Date, the
amount of Receivables in the Accounts was $2,433,528,576. The computer file or
microfiche list delivered pursuant to Section l(c) hereof is complete and
accurately reflects the information regarding the Receivables under the
Accounts in all material respects.
The representations and warranties set forth in this Section 8 shall
survive the transfer and assignment of the Receivables, and the proceeds
thereof to RFC and by RFC to the Trust. Upon discovery by the Seller or RFC 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 and
to the Trustee.
Section 9. Representations and Warranties of the Seller Relating to
the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. The Seller
hereby represents and warrants to RFC, with respect to the Agreement and
Receivables, as of the Closing Date, and, with respect to any matters involving
Additional Accounts, as of the related Additional Account Closing Date that:
(i) this Agreement and, in the case of Additional Accounts,
the related Assignment, each constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights and except as
such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(ii) Each of this Agreement, and as of the related Additional
Account Closing Date, each Assignment constitutes a valid sale and
assignment to RFC of all right, title and interest of the Seller in
and to the Receivables now existing and hereafter created, all monies
due or to become due with respect thereto on and after the Cut Off
Date, Recoveries, and all proceeds (as defined in the UCC as in effect
in the Relevant UCC State) of such Receivables, and such Receivables
and all proceeds thereof will be held by RFC free and clear of any
Lien of any Person claiming through or under the Seller or any of its
Affiliates except for Liens permitted under Section 12(b). Neither the
Seller nor any Person claiming through or under the Seller shall have
any claim to or
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interest in the Collection Account or any other account or accounts
maintained for the benefit of Certificateholders, except for any right
of RFC to receive interest accruing on, and investment earnings with
respect to, any such account as provided in the Pooling and Servicing
Agreement and any Supplement.
(b) Eligibility of Receivables. The Seller hereby represents and
warrants to RFC, as of the Cut Off Date and on each Additional Account Cut Off
Date that (i) each Receivable then existing is an Eligible Receivable, (ii) all
material information with respect to the Accounts and Receivables provided to
RFC by the Seller was true and correct in all material respects as of the
Selection Date or the related Additional Account Selection Date, (iii) each
Receivable then existing has been conveyed to RFC free and clear of any Lien of
any Person claiming through or under the Seller or any of its Affiliates (other
than Liens permitted under Section 12(b)) and in compliance, in all material
respects, with all Requirements of Law applicable to the Seller, (iv) with
respect to each Receivable then existing, all consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Seller, in
connection with the conveyance of such Receivable to RFC have been duly
obtained, effected or given and are in full force and effect, (v) as of the
Initial Closing Date, and, as of the applicable Additional Account Cut Off Date
with respect to Additional Accounts, Schedule 1 to this Agreement is and will
be an accurate and complete listing of all the Accounts in all material
respects as of the Cut Off Date or the applicable Additional Account Cut Off
Date, as the case may be, and the information contained therein with respect to
the identity of such Accounts and the Receivables existing thereunder is and
will be true and correct in all material respects as of such applicable Cut Off
Date or Additional Account Cut Off Date and (vi) no selection procedures
believed by the Seller to be adverse to the interests of RFC or the Investor
Certificateholders have been used in selecting the Initial Accounts. On each
day on which any new Receivable is created, the Seller shall be deemed to
represent and warrant to RFC that (A) each Receivable created on such day is an
Eligible Receivable, (B) each Receivable created on such day has been conveyed
to RFC in compliance, in all material respects, with all Requirements of Law
applicable to the Seller, (C) with respect to each such Receivable, all
consents, licenses, approvals or authorizations of or registrations or
declarations with, any Governmental Authority required to be obtained, effected
or given by the Seller, in connection with the conveyance of such Receivable to
RFC have been duly obtained, effected or given and are in full force and effect
and (D) the representations and warranties set forth in Section 9(a) are true
and correct with respect to each Receivable created on such day as if made on
such day.
(c) Notice of Breach. The representations and warranties set forth in
this Section 9 shall survive the transfer and assignment of the Receivables and
the proceeds thereof to the Trust. Upon discovery by the Seller or RFC of a
breach of any of the representations and warranties set forth in this Section
9, the party discovering such breach shall give prompt written notice to the
other party and to the Trustee.
Section 10. Addition of Accounts.
(a) With the consent of RFC, the Seller may, but shall not be
obligated to, designate from time to time Additional Accounts of the Seller to
be included as Accounts.
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(b) The Seller shall be permitted to designate and sell Receivables
from Additional Accounts to RFC only upon satisfaction of the following
conditions:
(i) On or before the tenth Business Day prior to the
Additional Account Closing Date, the Seller shall give RFC written
notice that such Additional Accounts will be included and specifying
the approximate aggregate amount of the Receivables to be transferred;
(ii) On or prior to the Additional Account Closing Date, the
Seller shall have delivered to RFC a written assignment (and RFC shall
have accepted such assignment) in substantially the form of Exhibit A
(the "Assignment") and shall have clearly indicated in its computer
files that the Receivables created in connection with the Additional
Accounts have been sold to RFC and the Seller shall have delivered to
RFC a computer file or microfiche list represented by the Seller to
contain a true and complete list of all Additional Accounts identified
by account number and by Receivable balance in such Additional
Accounts as of the Additional Account Cut Off Date, which computer
file or microfiche list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this
Agreement;
(iii) The Seller shall represent and warrant that (x) each
Additional Account was, as of the date of its selection (the
"Additional Account Selection Date"), an Eligible Account, (y) no
selection procedures believed by the Seller to be materially adverse
to the interests of RFC, any Series of Investor Certificateholders or
any Enhancement Provider were utilized in selecting the Additional
Accounts from the available Eligible Accounts in the Seller's
portfolio; and (z) as of the Additional Account Closing Date, the
Seller is not insolvent and will not be made insolvent by the transfer
of the Receivables of such Additional Accounts;
(iv) The Seller shall represent and warrant, that, as of the
Additional Account Closing Date, the Assignment constitutes a valid
sale and assignment to RFC of all right, title and interest of the
Seller in and to the Receivables then existing and thereafter created
in the Additional Accounts, all monies due or to become due with
respect thereto on and after the Additional Account Cut Off Date,
Recoveries and the proceeds thereof to the extent set forth in Section
9-306 of the UCC in effect in the Relevant UCC State of such
Receivables, and such Receivables and all proceeds thereof will be
conveyed to RFC free and clear of any Lien of any Person claiming
through or under the Seller or any of its Affiliates, except for Liens
permitted under Section 12(b) hereunder;
(v) The Seller shall deliver to RFC an Officer's Certificate
confirming the items set forth in paragraphs (ii), (iii) and (iv)
above and (vii) below and RFC may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying;
(vi) The Seller shall deliver to RFC an Opinion of Counsel
with respect to the Receivables in the Additional Accounts
substantially in the form of Exhibit C hereto; and
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(vii) The Rating Agencies shall have received ten (10)
Business Days' notice, and RFC shall have received three Business
Days' notice, of such proposed addition of Accounts; if such Accounts
are being added in connection with an addition of Accounts pursuant to
subsection 2.06(b) of the Pooling and Servicing Agreement, the Seller
shall have received written notice from Moody's (if Moody's shall then
be a Rating Agency) that such addition would not result in a
downgrading or withdrawal of the then current rating of any
outstanding Series of Investor Certificates; and, in the event that
the number of Additional Accounts designated with respect to any three
consecutive Due Periods would exceed 15% of the number of Accounts as
of the first day of the calendar year during which such Due Periods
commence (or the Cut-Off Date, in the case of 1992) or the number of
Additional Accounts designated during any such calendar year would
exceed 20% of the number of Accounts as of the first day of such
calendar year (or the Cut-Off Date, in the case of 1992), the Seller
shall have received written confirmation from Standard & Poor's (if
Standard & Poor's shall then be a Rating Agency) that such addition
would not result in a downgrade or withdrawal of its then current
rating of any outstanding Series of Investor Certificates.
Upon satisfaction of the above conditions, the Seller shall execute
and deliver the Assignment to RFC, and the Receivables from the Additional
Accounts shall be sold to RFC as provided in Section 1 of the Agreement.
(c) Notice of Breach. The representations and warranties set forth in
subsection 10(b)(iii) of this Agreement shall survive the sale, transfer and
assignment of the respective Receivables to RFC. Upon discovery by the Seller,
RFC, the Servicer or the Trustee of a breach of any of the covenants,
representations and warranties set forth herein, the party discovering the
breach shall give prompt written notice to the others.
Section 11. Repurchase of Ineligible Receivables.
(a) Automatic Removal. In the event of a breach with respect to a
Receivable of any of the representations and warranties set forth in Section
9(b)(iii), or in the event that a Receivable is not an Eligible Receivable as a
result of the failure to satisfy the conditions set forth in clause (iv) of the
definition of an Eligible Receivable, and either of the following conditions is
met:
(i) the Lien upon the subject Receivable (1) ranks prior to
the Lien created pursuant to this Agreement, (2) arises in favor of
the United States of America or any state or any agency or
instrumentality thereof or involves taxes or liens arising under Title
IV of the Employee Retirement Income Security Act of 1974, or (3) has
been consented to by the Sellers; or
(ii) the Lien on the subject Receivable is not of the types
described in clause (i) above, and as a result of such breach or event
such Receivable becomes a Receivable in a Defaulted Account or RFC's
or the Trust's rights in, to or under such Receivable or its proceeds
are materially impaired or the proceeds of such Receivable are not
available for any reason to the Trust free and clear of any Lien
except Liens permitted pursuant to Section 12(b);
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then, upon the earlier to occur of the discovery of such breach or
event by the Seller, the Servicer or RFC or receipt by the Seller of
written notice of such breach or event given by the Trustee, each such
Receivable or, at the option of RFC, all such Receivables with respect
to the related Account shall be automatically removed from the Trust
and repurchased by the Seller on the terms and conditions set forth
below in Section 11(c).
(b) Removal after Cure Period. In the event of a breach of any of the
representations and warranties set forth in Section 9(b)(i), (ii), (iv) or (v)
with respect to a Receivable (other than in the event that a Receivable is not
an Eligible Receivable as a result of the failure to satisfy the conditions set
forth in clause (iv) of the definition of Eligible Receivable), and as a result
of such breach or event such Receivable becomes a Receivable which is not an
Eligible Receivable, the Account related to such Receivable becomes a Defaulted
Account or the Trust's or RFC's rights in, to or under such Receivable or its
proceeds are materially impaired or the proceeds of such Receivable are not
available for any reason to the Trust or RFC free and clear of any Lien (other
than Liens permitted pursuant to Section 12(b)), then, upon the expiration of
60 days or any longer period agreed upon by the Trustee and RFC (not to exceed
an additional 60 days) from the earlier to occur of the discovery of any such
event by RFC or the Servicer, or receipt by RFC or the Servicer of written
notice of any such event given by the Trustee, each such Receivable or, at the
option of RFC or the Trustee, all such Receivables with respect to the related
Account, shall be removed from the Trust and repurchased by the Seller on the
terms and conditions set forth in Section 11(c); provided, however, that no
such removal shall be required to be made if, on any day within such applicable
period, (i) such representations and warranties with respect to such Receivable
shall then be true and correct in all material respects as if such Receivable
had been created on such day, and (ii) such Receivable is an Eligible
Receivable, the related Account is no longer a Defaulted Account as the result
of the breach of such representation and warranty (including those implied by
law), and the Trust's and RFC's rights in, to or under such Receivable or its
proceeds are no longer impaired as the result of the breach of such
representation and warranty, and the proceeds of such Receivable have become
available to the Trust and RFC free and clear of all Liens which caused the
breach of such representation or warranty, as applicable.
(c) Removal Terms and Conditions. When required or permitted with
respect to a Receivable (an "Ineligible Receivable") by the provisions of
Section 11(a) or Section 11(b) above, the Seller shall pay to RFC the balance
of such Receivable within two Business Days of the date on which such
Receivable became an Ineligible Receivable. Any such payment in connection with
the reassignment of an Ineligible Receivable shall be considered a payment in
full of the Ineligible Receivable. Upon the reassignment to the Seller of an
Ineligible Receivable, RFC shall, without further action be deemed to sell,
assign, set-over and otherwise convey to the Seller, without recourse,
representation or warranty (including those implied by law), all the right,
title and interest of RFC in and to such Ineligible Receivable, all monies due
or to become due with respect thereto and all proceeds thereof. RFC shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by the Seller to effect the
conveyance of such Ineligible Receivable pursuant to this subsection and as
shall be specified in an Opinion of Counsel delivered to RFC to the effect that
such documents and instruments comply herewith. In the event that on any day
within 60 days, or any longer period agreed upon by the Trustee (not to exceed
an additional 60 days), of the date on which the repurchase of an Ineligible
Receivable pursuant to this Section 11
10
is effected, (i) the applicable representations and warranties with respect to
such Receivable shall be true and correct in all material respects on such date
and (ii) the Receivable is an Eligible Receivable, the Account corresponding to
the Receivable is no longer a Defaulted Account as the result of the breach of
such representation and warranty and the proceeds of such Receivable are
available to the Trust and RFC free and clear of all Liens which caused the
breach of such representation and warranty, or (iii) the Seller has cured the
breach of the representation or warranty, as applicable, the Seller may, but
shall not be required to, reconvey such Receivable to RFC. Upon reconveyance of
a Receivable pursuant to this subsection, the Seller shall have been deemed to
have made the applicable representations and warranties in Section 9(b) as of
the date of such addition, as if the Receivable had been created on such date,
and shall execute all such necessary documents and instruments of transfer or
assignment and take such other actions as shall be necessary to effect and
perfect the reconveyance of such Receivable to RFC, The obligation of the
Seller set forth in this subsection, or the repurchase of such Receivable by
the Seller from RFC, as the case may be, shall constitute the sole remedy
respecting any breach of the representations and warranties set forth in the
above-referenced Sections with respect to such Receivable available to RFC, the
Certificateholders or the Trustee on behalf of Certificateholders.
Notwithstanding any other provision of this Section 11, a reassignment
of an Ineligible Receivable shall not occur if the Seller fails to make the
deposit required by this Section 11 with respect to such Ineligible Receivable.
(d) No Impairment. For the purposes of Sections 11(a) and 11(b) and
above, proceeds of a Receivable shall not be deemed to be impaired hereunder
solely because such proceeds are held by the Servicer for more than the
applicable period under Section 9-306(3) of the UCC as in effect in the
Relevant UCC State.
(e) Reassignment of Trust Portfolio. In the event of (1) a breach of
any of the representations or warranties set forth in Section 8(a) or Section
9(a) or (2) a material amount of Receivables are not Eligible Receivables, and
in either case such event has a materially adverse effect on RFC or Investor
Certificateholders, RFC by notice then given in writing to the Seller, may
direct the Seller to accept reassignment of all Receivables within 60 days of
such notice, or within such longer period as may be specified in such notice
(not to exceed an additional 60 days) and the Seller shall be obligated to
accept such reassignment on a Distribution Date specified by RFC occurring
within such applicable period on the terms and conditions set forth below;
provided, however, that no such reassignment shall be required to be made if,
on the Business Day prior to such Distribution Date the representations and
warranties contained in Section 8(a) or 9(a) shall then be true and correct in
all material respects, or there shall no longer be a material amount of
Ineligible Receivables, as the case may be. The Seller shall pay RFC on the
Business Day immediately prior to the Distribution Date (in immediately
available funds) an amount equal to the reassignment deposit amount for such
Receivables in the Collection Account. The amount for such reassignment shall
be equal to the Aggregate Invested Amount on the Record Date related to the
applicable Distribution Date on which such payment is made (less the aggregate
principal amount on deposit in any principal funding account) plus an amount
equal to all accrued but unpaid interest on the Certificates of all Series at
the applicable certificate rates through the end of the interest accrual
periods of such Series. On the Distribution Date with respect to which such
amount has been paid in full to RFC, the
11
Receivables and all monies due or to become due with respect thereto and all
proceeds relating thereto shall be reconveyed to the Seller and RFC shall
execute or cause the Trustee to execute and deliver such instruments of transfer
or assignment, in each case without recourse, representation or warranty, as
shall be reasonably requested by the Seller to vest in the Seller or its
designee or assignee, all right, title and interest of RFC in and to the
Receivables, all monies due or to become due with respect thereto and all
proceeds thereof and as shall be specified in an Opinion of Counsel delivered to
RFC to the effect that such documents and instruments comply herewith.
Section 12. Covenants of the Seller. The Seller hereby covenants that:
(a) Receivables Not to be Evidenced by Promissory Notes or Chattel
Paper. The Seller will take no action to cause any Receivable to be evidenced
by any instrument (as defined in the UCC as in effect in the Relevant UCC
State). Each Receivable shall be payable pursuant to a contract which does not
create a Lien on any goods purchased thereunder.
(b) Security Interests. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any Receivable, whether
now existing or hereafter created, or any interest therein; the Seller will
notify RFC of the existence of any Lien on any Receivable transferred by the
Seller immediately upon discovery thereof; and the Seller shall defend the
right, title and interest of RFC or the Trust in, to and under the Receivables,
whether now existing or hereafter created, against all claims of third parties
claiming through or under the Seller; provided, however, that nothing in this
subsection 12(b) shall prevent or be deemed to prohibit the Seller from
suffering to exist upon any of the Receivables any Liens for municipal or other
local taxes and other governmental charges if such taxes or governmental
charges shall not at the time be due and payable or if the Seller shall
currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect thereto; provided, further, that nothing in this subsection shall
prohibit the Seller or RFC from having or participating an interest in the
Exchangeable Transferor Certificate pursuant to subsection 6.03(b) of the
Pooling and Servicing Agreement.
(c) Account Agreements and Guidelines. The Seller shall comply with and
perform its obligations under the applicable Account Agreements relating to the
Accounts and the Account Guidelines except insofar as any failure so to comply
or perform would not materially and adversely affect the rights of the Trust or
the Investor Certificateholders under the Pooling and Servicing Agreement.
Subject to compliance with all Requirements of Law the failure to comply with
which would have a material adverse effect on the Investor Certificateholders,
the Seller may change the terms and provisions of the Account Agreement or the
Account Guidelines in any respect (including, without limitation, the
calculation of the amount, or the timing, of charge-offs) as follows: (a) if the
Seller owns a comparable segment of accounts, then such change is made
applicable to such comparable segment which has characteristics the same as, or
substantially similar to, the Accounts which are the subject of such change and
(b) if it does not own such a comparable segment, the Seller will not make any
such change with the intent to materially benefit the Seller or RFC over the
Investor Certificateholders.
12
(d) Account Allocations, In the event that the Seller is unable for
any reason to sell Receivables to RFC in accordance with the provisions of this
Agreement (including, without limitation, by reason of the application of the
provisions of Section 9.02 of the Pooling and Servicing Agreement or an order
of any court of competent jurisdiction ordering that the Seller not sell any
additional Receivables to RFC) then, in any such event, the Seller agrees
(except as prohibited by any such order) to allocate and pay to RFC, after the
date of such inability, all Principal Collections with respect to Receivables
and all amounts which would have constituted Principal Collections with respect
to such receivables which would have been Receivables but for the Seller's
inability to sell such receivables (up to an aggregate amount equal to the
amount of Receivables in the Trust on such date). If the Seller is unable
pursuant to any Requirement of Law to allocate Principal Collections as
described above, the Seller agrees that it shall, in any such event, allocate,
after the date that the Seller becomes unable to do so, payments on each
Account with respect to the balance of such Account first to the oldest balance
of such Account.
(e) Delivery of Collections. In the event that the Seller receives
Collections, the Seller agrees to pay the Servicer or any Successor Servicer
all payments received by the Seller in respect of the Receivables as soon as
practicable after receipt thereof by the Seller, but in no event later than two
Business Days after the receipt by the Seller thereof.
(f) Notice of Liens. The Seller shall notify RFC and the Trustee
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder and under the Pooling and Servicing Agreement.
Section 13. Removal of Accounts.
(a) Subject to the conditions set forth below, on each Determination
Date on which the Transferor Amount as a percentage of Trust Principal
Component exceeds 20% at the end of the related Due Period, RFC may, but shall
not be obligated to, designate, from time to time, Accounts for deletion and
removal from the Accounts and reconveyance to the Seller; provided, however,
that RFC shall not make more than one such designation in any Due Period. On or
before the tenth Business Day (the "Removal Notice Date") prior to the date on
which (i) the designated Removed Accounts will be reassigned by the Trustee to
RFC, and (ii) RFC shall reconvey the designated Removed Accounts to the Seller,
(the "Removal Date"), RFC shall give the Trustee, the Seller and the Servicer
written notice that the Receivables from such Removed Accounts are to be
reassigned by the Trustee to RFC, and shall be reconveyed by RFC to the Seller.
(b) RFC shall be permitted to designate and require reassignment to it
of Receivables from Removed Accounts, and reconveyance of Receivables in
Removed Accounts to the Seller, only upon satisfaction of the following
conditions:
(i) on or prior to the Removal Date, RFC shall have executed
a written instrument of reassignment in substantially the form of
Exhibit D (the "Reassignment") and RFC shall deliver to the Seller a
computer file or microfiche list containing a true and complete list
of all Removed Accounts identified by account number and by the
aggregate balance of the Receivables in such Removed Accounts as of
13
the Removal Notice Date, which computer file or microfiche list shall
as of the Removal Date modify and amend and be made a part of this
Agreement;
(ii) RFC shall represent and warrant that no selection
procedures believed by RFC to be materially adverse to the interests
of any outstanding Series of Investor Certificateholders or any
Enhancement Provider were utilized in selecting the Removed Accounts
to be removed from the Trust and reconveyed to the Seller;
(iii) The removal of any Receivables of any Removed Accounts
and the reconveyance thereof to the Seller on any Removal Date shall
not, (a) in the reasonable belief of RFC, cause an Early Amortization
Event to occur or an event which with notice or lapse of time or both
would constitute an Early Amortization Event and (b) cause the
Transferor Amount as a percentage of the Trust Principal Component to
be less than the Minimum Transferor Percentage on such Removal Date;
(iv) The Rating Agencies shall have received ten Business
Days' notice of such proposed removal of Accounts and RFC shall have
received written confirmation from the Rating Agencies that such
removal would not result in a downgrading or withdrawal of the then
current rating of any outstanding Series of the Investor Certificates;
and
(v) RFC shall have delivered to the Trustee an Officer's
Certificate confirming the items set forth in (i) through (iv) above.
The Seller may conclusively rely on such Officer's Certificates, shall
have no duty to make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying.
Upon satisfaction of the above conditions and the delivery by the
Trustee of the Reassignment required by the Pooling and Servicing Agreement,
RFC shall execute and deliver the Reassignment to the Seller, and the
Receivables from the Removed Accounts shall be reconveyed to the Seller
pursuant to the provisions of this Section 13.
Section 14. Liability; Indemnification. The Seller shall be liable for
each obligation, covenant, representation and warranty of the Seller, arising
under or related to this Agreement. Except as provided in the preceding
sentence, the Seller shall be liable only to the extent of the obligations
specifically undertaken by the Seller in its capacity as Seller hereunder. The
Seller agrees to indemnify RFC and to hold RFC harmless from and against any
and all losses, damages and expenses (including reasonable attorneys' fees)
suffered or incurred by RFC as a result of a material breach of a covenant,
representation or warranty hereunder.
Section 15. Merger or Consolidation of, or Assumption of the
Obligations of, the Seller.
(a) The Seller shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which the Seller is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Seller substantially as
an entirety shall be a corporation organized and
14
existing under the laws of the United States of America or any state
or the District of Columbia, and, if the Seller is not the surviving
entity, shall expressly assume, by an agreement supplemental hereto,
executed and delivered to RFC, the Servicer and the Trustee, in form
satisfactory to RFC, the Servicer and the Trustee, the performance of
every covenant and obligation of the Seller hereunder. (To the extent
that any right, covenant or obligation of the Transferor is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity); and
(ii) the Seller has delivered to RFC, the Servicer and the
Trustee an officers' certificate signed by a Vice President (or any
more senior officer) of the Seller and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section 15 and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
The Seller shall promptly advise the Rating Agencies in writing of any such
merger, consolidation, conveyance or transfer.
Section 16. Limitation on Liability of the Seller. Subject to Section
14 of this Agreement, neither the Seller nor any of its directors or officers
or employees or agents in its capacity as Seller shall be under any liability
to the Trust, the Trustee, the Certificateholders, RFC or any other Person for
any action taken or for refraining from the taking of any action in the
capacity as Seller pursuant to this Agreement whether arising from express or
implied duties under this Agreement; provided, however, that this provision
shall not protect the Seller or any such person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Seller and any director or
officer or employee or agent of the Seller may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder.
Section 17. Sale of Accounts.
(a) The Seller may sell, transfer, assign, exchange, pledge,
participate or otherwise convey its interest in the Accounts, to any Person, in
whole or in part, upon satisfaction of the conditions set forth in subsection
17(b) of this Agreement (such a sale transaction is referred to in this Section
17 as a "Conveyance"). The consummation of any Conveyance shall not require the
consent of RFC, the Trustee or the Holders of the Investor Certificates of any
Series except as provided in this Section 17.
(b) No Conveyance may be effected unless and until the following
conditions precedent are satisfied:
(i) the Person that acquires by Conveyance the conveyed
Accounts shall (A) be organized and existing under the laws of the
United States of America or any state or the District of Columbia
thereof, (B) be a member of the same consolidated federal income tax
group as RFC, and (C) expressly assume, by an agreement
15
supplemental hereto in form satisfactory to RFC, the Servicer and the
Trustee, executed and delivered to RFC, the Servicer and the Trustee,
the performance of every covenant and obligation of the Seller
hereunder and under the Pooling and Servicing Agreement;
(ii) the Seller shall deliver to RFC, the Trustee, the
Servicer and each Enhancement Provider an Officer's Certificate
stating that such Conveyance and such supplemental agreement comply
with this Section 17 and that all conditions precedent provided by
this Section 17(b) have been complied with and an opinion of Counsel
stating that all conditions precedent provided by this Section 17(b)
have been complied with, and RFC, the Servicer and the Trustee may
conclusively rely on such Officer's Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying;
(iii) the Seller shall deliver to RFC, the Trustee, the
Servicer and each Enhancement Provider a letter from each Rating
Agency rating the Investor Certificates of any Series, confirming that
the rating of such Certificates, after giving effect to such
Conveyance, will not be lowered or withdrawn;
(iv) the Seller shall deliver to RFC, the Trustee, the
Servicer, the Rating Agencies and each Enhancement Provider an opinion
of Counsel to the effect that (i) such transfer will not adversely
affect the treatment of the Investor Certificates of any Series after
such transfer as debt for Federal income tax purposes and such
transfer will not have any material adverse effect on the Federal
income taxation of an Investor Certificateholder or any Certificate
Owner and (ii) such transfer will not cause a taxable Event for
Federal income tax purposes to any Investor Certificateholder; and
(v) all filings and other actions necessary to continue the
perfection of the interest of RFC and the Trustee in the Receivables
and the other property conveyed hereunder shall have been taken or
made.
Section 18. Access to Certain Documentation and Information Regarding
the Receivables. The Seller shall provide to the Trustee, the Servicer and RFC
reasonable access to the documentation regarding the Accounts and the
Receivables in such cases where required in connection with the performance by
the Trustee, the Servicer or RFC of their obligations under this Agreement, the
Pooling and Servicing Agreement or any Supplement, the enforcement of the
rights of the Investor Certificateholders, or by applicable statutes or
regulations to review such documentation, such access being afforded without
charge but only (i) upon reasonable request, (ii) during normal business hours,
(iii) subject to such protective orders and confidentiality agreements or
procedures as the Seller deems necessary or advisable and (iv)at offices
designated by the Seller. Nothing in this Section 19 shall derogate from the
obligation of RFC, the Servicer, the Trustee or the Seller to observe any
applicable law prohibiting disclosure of information regarding the obligors and
the failure of the Seller to provide access as provided in this Section 18 as a
result of such obligation shall not constitutes breach of this Section 18.
Section 19. Examination of Records. The Seller and RFC shall indicate
clearly and unambiguously in their computer files or other records that the
Receivables arising in the Accounts have been conveyed to the Trust pursuant to
this Agreement and the Pooling and
16
Servicing Agreement for the benefit of the Investor Certificateholders. The
Seller and RFC shall, prior to the sale or transfer to a third party of any
receivable held in their custody, examine its computer and other records to
determine that such receivable is not a Receivable.
Section 20. Termination. Upon the termination of the Trust pursuant to
Section 12.01 of the Pooling and Servicing Agreement, the surrender of the
Exchangeable Transferor Certificate and the compliance by the Trustee with
Section 12.04 of the Pooling and Servicing Agreement, RFC shall return to the
Seller (without recourse, representation or warranty) all right, title and
interest of RFC in the Receivables, whether then existing or thereafter
created, all moneys due or to become due with respect thereto (including
Recoveries), and all proceeds thereof except for amounts held by the Trustee
pursuant to subsection 12.03(b) of the Pooling and Servicing Agreement. RFC
shall execute and deliver such instruments of transfer and assignment, in each
case without recourse, as shall be reasonably requested by the Seller to vest
in the Seller all right, title and interest which RFC had in the Receivables.
Section 21. Amendment.
(a) This Agreement may be amended from time to time by the Seller and
RFC, without the consent of the Trustee or any of the Investor
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein or
to add any other provisions with respect to matters or questions raised under
this Agreement which are not inconsistent with the provisions of this
Agreement. This Agreement may also be amended from time to time by the Seller
and RFC without the consent of the Trustee or the Investor Certificateholders
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Investor Certificateholders; provided, however, that (i) the
Servicer shall have provided to the Trustee an Officer's Certificate to the
effect that such action will not materially and adversely affect the interests
of such Investor Certificateholders (or 100% of the Class of Investor
Certificateholders so affected shall have consented), (ii) each Rating Agency
rating the Investor Certificates confirms that such action will not result in
the reduction or withdrawal of its rating of Investor Certificates and (iii)
such action will not, as evidenced by an opinion of counsel satisfactory to the
Trustee, cause the Trust to be characterized for Federal income tax purposes as
an association taxable as a corporation or adversely affect the treatment of
the Investor Certificates as debt for Federal income tax purposes.
(b) This Agreement may also be amended from time to time by the Seller
and RFC with the consent of the Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 66-2/3% of the Invested Amount of
each and every Series adversely affected, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Investor
Certificateholders of any Series then issued and outstanding; provided,
however, that no such amendment under this subsection shall (i) reduce in any
manner the amount of, or delay the timing of, Collections on the Receivables or
payments or distributions which are required to be made on any Investor
Certificate of such Series without the consent of the related Investor
Certificateholder, or (ii) reduce the aforesaid percentage required to consent
to any such amendment, in each case without the consent of all such Investor
Certificateholders.
17
(c) Prior to the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of such amendment
to the Rating Agencies.
(d) Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification (or in the case of Bearer
Certificates, publish notice in the manner described in Section 13.05 of the
Pooling and Servicing Agreement) of the substance of such amendment to each
Investor Certificateholder, and the Servicer shall furnish written notification
of the substance of such amendment to any related Enhancement Provider and each
Rating Agency.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 21 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(f) Any Assignment regarding the sale of Receivables by the Seller to
RFC as provided in Section 10 of this Agreement, or Reassignment relating to
the conveyance of Receivables by RFC to the Seller as provided in Section 13 of
this Agreement, executed to facilitate the addition to or removal of
Receivables from the Trust as provided in Sections 2.06 and 2.07, respectively,
of the Pooling and Servicing Agreement and executed in accordance with the
provisions hereof shall not be considered amendments to this Agreement,
including, without limitation, for the purpose of subsections 21(a), (b) or (c)
of the Agreement.
Section 22. Protection of Right, Title and Interest to Receivables.
(a) The Seller shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Seller's and RFC's right, title and interest
to the Receivables and proceeds thereof to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in such
manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of RFC hereunder and the Trustee under
the Pooling and Servicing Agreement to the Receivables and proceeds thereof.
The Seller shall deliver to RFC file-stamped copies of, or filing receipts for,
any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. RFC shall cooperate
fully with the Seller in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 22(a).
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
Relevant UCC State, the Seller shall give RFC and the Trustee notice of any such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of RFC's and the Trustee's security
interest in the Receivables and the proceeds thereof.
18
(c) The Seller will give RFC and the Trustee prompt written notice of
any relocation of any office from which it keeps records concerning the
Receivables or of its principal executive office, and whether, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall file such financing statements or
amendments as may be necessary to perfect or to continue the perfection of
RFC's security interest in the Receivables and the proceeds thereof. The Seller
will at all times maintain each office from which it services Receivables and
its principal executive office within the United States of America.
Section 23. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 24. 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 registered mail, return receipt requested, to (a) in
the case of American Express Receivables Financing Corporation to American
Express Tower, World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with copies to American Express Travel Related
Services Company, Inc., American Express Tower, World Financial Center, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, and (b) in
the case of American Express Travel Related Services Company, Inc., American
Express Tower, World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, with copies to American Express Travel
Related Services Company, Inc., American Express Tower, World Financial Center,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party, Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the party receives such notice.
Section 25. 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 or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 26. Assignment. Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by RFC or the Seller
except as contemplated by this Section 26 and Section 17 of this Agreement and
the Pooling and Servicing Agreement; provided, however, that simultaneously
with the execution and delivery of this Agreement, RFC shall assign all of its
right, title and interest herein to the Trustee for the benefit of the Investor
Certificateholders of all Series as provided in Section 2.01 of the Pooling and
Servicing Agreement, to which the Seller hereby expressly consents; provided,
further, that except for the foregoing assignment, no such assignment shall
occur unless the Trustee shall have received confirmation from the Rating
Agencies that such assignment shall not cause a reduction or
19
withdrawal of the rating of any Series of Certificates. The Seller agrees to
perform its obligations hereunder for the benefit of the Trust and that the
Trustee may enforce the provisions of this Agreement, exercise the rights of
RFC and enforce the obligations of the Seller hereunder without the consent of
RFC. In the event that the Seller is obligated to pay funds to RFC hereunder,
to the extent RFC is obligated to remit funds to the Trust pursuant to the
Pooling and Servicing Agreement in connection with such event, the Seller
agrees that it shall pay such funds to the Servicer or the Trustee as
appropriate.
Section 27. Further Assurances. The Seller and RFC 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 Trustee more fully to
effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the Relevant UCC State of
any applicable jurisdiction.
Section 28. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Seller or RFC, 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 29. 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 30. Third Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, and, in addition, shall
inure to the benefit of the Trustee and the Investor Certificateholders and
their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, no other person will have any right or obligation hereunder;
provided, however, that if so specified in the applicable Supplement to the
Pooling and Servicing Agreement, an Enhancement Provider may be deemed to be a
third party beneficiary of this Agreement.
Section 31. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 32. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
20
IN WITNESS WHEREOF, the Seller and RFC have caused this Receivable
Purchase Agreement to be duly executed by their respective officers as of the
day and year first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
as Seller
By
----------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION,
as Purchaser
By
----------------------------------
Name:
Title:
21
EXHIBIT A
---------
FORM OF ASSIGNMENT,OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Subsection 10(b)(ii) of
the Receivable Purchase Agreement)
ASSIGNMENT No. ____ OF ADDITIONAL RECEIVABLES IN ACCOUNTS,
dated as of _______________, by and between AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC., a New York corporation, as Seller (the "Seller") and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION, a Delaware corporation
("RFC"), pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Seller and RFC are parties to the Receivable
Purchase Agreement, dated as of June 30, 1992 (hereinafter as such agreement
may have been or may from time to time be, amended, supplemented or otherwise
modified, the "Receivable Purchase Agreement");
WHEREAS, the Seller wishes, pursuant to Section 10(a) of the
Receivable Purchase Agreement, to designate Additional Accounts of the Seller
to be included as Accounts and to sell the Receivables of such Additional
Accounts, whether now existing or hereafter created, to RFC, and RFC will
transfer the Receivables of such Additional Accounts to the American Express
Master Trust to become a part of the corpus of the Trust (the "Trust") pursuant
to Section 2.06 of the Master Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") dated as of June 30, 1992, between RFC as Transferor,
American Express Travel Related Services Company, Inc., as Servicer and The
Bank of New York, as Trustee (the "Trustee"); and
WHEREAS, RFC is willing to accept such designation and
conveyance of the Receivables in the Additional Accounts subject to the terms
and conditions hereof;
NOW THEREFORE, the Seller and RFC hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Additional Account Closing Date" shall mean, with respect to
the Additional Accounts designated hereby, ____________, 19__.
"Additional Account Cut Off Date" shall mean, with respect to
the Additional Accounts designated hereby, ____________, 19__.
"Addition Selection Date" shall mean, with respect to the
Additional Accounts designated hereby, ____________.
A-1
2. Designation of Additional Accounts. The Seller shall
deliver to RFC on the Additional Account Closing Date, a computer file or
microfiche list containing a true and complete list of each Account which as of
the Additional Account Closing Date shall be deemed to be an Additional
Account, such accounts being identified by account number and by the aggregate
Receivables balance in such accounts as of the close of business on the
Additional Account Cut Off Date. Such list shall be marked as Schedule 1 to
this Assignment and, as of the Additional Account Closing Date, shall be
incorporated into and made a part of this Assignment and the Receivable
Purchase Agreement.
3. Conveyance of Receivables. (a) The Seller does hereby
sell, transfer, assign, set-over and otherwise convey to RFC without recourse
on and after the Additional Account Closing Date, all right, title and interest
of the Seller in and to the Receivables now existing and hereafter created in
the Additional Accounts designated on Schedule 1, all monies due or to become
due on and after the Additional Account Cut Off Date and all amounts received
with respect thereto, including all Recoveries related thereto, and all
proceeds thereof.
(b) In connection with such transfer, the Seller agrees to
record and file, at its own expense, financing statements with respect to the
Receivables now existing and hereafter created in the Additional Accounts
designated on Schedule 1 (which may be a single financing statement with
respect to all such Receivables) for the transfer of accounts and general
intangibles as defined in Section 9-106 of the UCC as in effect in the Relevant
UCC State meeting the requirements of Relevant UCC State law in such manner and
such jurisdictions as are necessary to perfect the sale and assignment of such
Receivables to RFC, and to deliver a file-stamped copy of such financing
statement or other evidence of such filing (which may, for purposes of this
Section 3. consist of telephone confirmation of such filing, confirmed within
24 hours in writing) to RFC on or prior to the Additional Account Closing Date.
(c) In connection with such transfer, the Seller further
agrees, at its own expense, on or prior to the Additional Account Closing Date,
to indicate clearly and unambiguously in its computer files that Receivables
created in connection with the Additional Accounts designated hereby have been
conveyed to RFC pursuant to this Assignment.
4. Acceptance by RFC. RFC hereby acknowledges its acceptance
of all right, title and interest previously held by the Seller in and to the
Receivables now existing and hereafter created. RFC further acknowledges that,
prior to or simultaneously with the execution and delivery of this Assignment,
the Seller delivered to RFC the computer file or microfiche list described in
Section 2 of this Assignment.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to RFC as of the Additional Account Closing Date
that:
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited
by general principles of equity (whether considered in a suit at law or in
equity).
A-2
(b) Eligibility of Accounts. Each Additional Account
designated hereby as of the Addition Selection Date is an Eligible Account.
(c) Selection Procedures. No selection procedures believed by
the Seller to be materially adverse to the interests of any outstanding Series
of Investor Certificates or any Enhancement Provider were utilized in selecting
the Additional Accounts designated hereby from the available Eligible Accounts
in the Seller's portfolio of charge card accounts.
(d) Insolvency. The Seller is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of this Assignment, will not be
insolvent.
(e) Security Interest. This Assignment constitutes a valid
transfer and assignment to RFC of all right, title and interest of the Seller
in and to Receivables now existing and hereafter created in Additional Accounts
designated on Schedule 1 hereto, all monies due or to become due with respect
thereto on and after the Additional Account Cut Off Date, Recoveries and all
proceeds of such Receivables to the extent set forth in Section 9-306 of the
UCC in effect in the Relevant UCC State of such Receivables, and such
Receivables and all proceeds thereof will be conveyed to RFC free and clear of
any Lien of any Person claiming through or under the Seller or any of its
Affiliates except for Liens permitted under subsection 12(b) of the Receivable
Purchase Agreement.
6. Conditions Precedent. The acceptance of RFC set forth in
Section 4 and the amendment of the Receivable Purchase Agreement set forth in
Section 7 are subject to the satisfaction, on or prior to the Additional
Account Closing Date, of the following conditions precedent:
(a) Officer's Certificate. The Seller shall have delivered to
RFC an Officer's Certificate, certifying that (i) all requirements set forth in
Section 10 of the Receivable Purchase Agreement for designating Additional
Accounts and conveying the Receivables of such Accounts, whether now existing
or hereafter created, have been satisfied and (ii) each of the representations
and warranties made by the Seller in Section 5 is true and correct as of the
Additional Account Closing Date. RFC may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the matters
set forth therein, and shall incur no liability in so relying.
(b) Opinion of Counsel. The Seller shall have delivered to
RFC and each Rating Agency an Opinion of Counsel with respect to the
Receivables in the Additional Accounts designated hereby substantially in the
form of Part One of Exhibit C to the Receivable Purchase Agreement.
(c) Additional Information. The Seller shall have delivered
to RFC such information as was reasonably requested by RFC to satisfy itself as
to the accuracy of the representation and warranty set forth in subsection 5(d)
to this Assignment.
7. Amendment of the Receivable Purchase Agreement. The
Receivable Purchase Agreement is hereby amended to provide that all references
therein to the "Receivable Purchase Agreement," to "this Agreement" and
"herein" shall be deemed from and after the Additional Account Closing Date to
be a dual reference to the Receivable Purchase Agreement
A-3
as supplemented by this Assignment. Except as expressly amended hereby, all of
the representations, warranties, terms, covenants and conditions of the
Receivable 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 a consent to non-compliance with any
term or provision of the Receivable Purchase Agreement.
8. Counterparts. This Assignment 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.
A-4
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and the year first above
written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
as Seller
By
----------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION,
as Purchaser
By
----------------------------------
Name:
Title:
A-5
EXHIBIT B
---------
to Receivable Purchase Agreement
Revised
FORM OF SETTLEMENT STATEMENT
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION
RECEIVABLES PURCHASE AGREEMENT
---------------------------------------------
For Preceding Due Period Beginning
___________ and Ending ___________
American Express Travel Related Services Company, Inc. (the
"Seller"), and American Express Receivables Financing Corporation ("RFC"),
pursuant to the Receivable Purchase Agreement (the "Purchase Agreement") dated
as of June 30, 1992, by and between the Seller and RFC, do hereby agree and
certify as follows:
1. Capitalized terms used in this Settlement Statement have
their respective meanings in the Purchase Agreement,
This Settlement Statement is being delivered pursuant to
Section 6 of the Purchase Agreement. References herein
to certain sections are references to the respective
sections in the Purchase Agreement.
2. New Receivables created in Accounts in the preceding Due
Period being settled on this Purchase Date. ---------
Settlement
3. Purchase Price: ---------
4. Payment due to TRS in immediately available funds: ---------
B-1
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Settlement Statement this ____ day of ___________, 19__.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
as Seller
By
----------------------------------
Name:
Title:
B-2
EXHIBIT C
---------
FORM OF OPINION OF COUNSEL
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL TO BE
DELIVERED PURSUANT TO
SUBSECTION 10(b)(vi)
--------------------
The opinions set forth below may be subject to certain
qualifications, assumptions, limitations and exceptions taken or made in the
opinion with respect to similar matters delivered on the Closing Date, Such
counsel may rely as to factual matters on certificates of officers of the
Seller.
(i) The Assignment has been duly authorized, executed and
delivered by the Seller and constitutes the valid and legally binding agreement
of the Seller, enforceable against the Seller in accordance with its terms
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles.
(ii) with respect to Receivables in existence on the date
hereof, such sale transfers all of the right, title and interest of the Seller
in and to such Receivables to RFC, free and clear of any Liens now existing or
hereafter created;
(iii) with respect to Receivables which come into existence
after the date hereof, upon the creation of such Receivables and the subsequent
transfer of such Receivables to RFC in accordance with the Receivable Purchase
Agreement and receipt by the Seller of the consideration therefor required
pursuant to the Receivable Purchase Agreement, such sale will transfer all of
the right, title and interest of the Seller in and to such Receivables to RFC
free and clear of any Liens;
C-1
EXHIBIT D
---------
FORM OF REASSIGNMENT OF
RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 13 of
the Receivables Purchase Agreement)
REASSIGNMENT No. ____ OF RECEIVABLES, dated as of __________,
___, by and between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a
New York Corporation, as Seller (the "Seller"), and AMERICAN EXPRESS
RECEIVABLES FINANCING CORPORATIONT a Delaware Corporation ("RFC"), pursuant to
the Receivable Purchase Agreement referred to below.
W I T N E S S E T H:
--------------------
WHEREAS, the Seller and RFC are parties to the Receivable
Purchase Agreement, dated as of June 30, 1992 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Receivable Purchase Agreement");
WHEREAS, pursuant to the Master Pooling and Servicing
Agreement, dated as of June 30, 1992, by and between RFC as Transferor,
American Express Travel Related Services Company, Inc., as Servicer, and The
Bank of New York, as trustee (the "Trustee"), RFC wishes to remove all
Receivables in certain designated Accounts of RFC (the "Removed Accounts") from
the American Express Master Trust (the "Trust") and to cause the Trustee to
transfer the Receivables of such Removed Accounts, whether now existing or
hereafter created, from the Trust to RFC;
WHEREAS, pursuant to Section 13 of the Receivable Purchase
Agreement, RFC wishes to reconvey to the seller the Receivables in the Removed
Accounts; and
WHEREAS, the Seller is willing to accept the reconveyance of
the Receivables in the Removed Accounts subject to the terms and conditions
hereof;
NOW, THEREFORE, the Seller and RFC hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, ___________,19__.
"Removal Notice Date" shall mean, with respect to the Removed
Accounts designated hereby, __________, ________ (which shall be a date on or
prior to the tenth Business Day prior to the Removal Date).
D-1
2. Designation of Removed Accounts. The Seller shall deliver
to the Trustee, not later than three Business Days after the delivery of this
Reassignment, a computer file or microfiche list containing a true and complete
list of each Account which as of the Removal Date shall be deemed to be a
Removed Account, such accounts being identified by account number and by the
aggregate Receivables balance in such Removed Accounts as of the Removal Notice
Date. Such list shall be marked as Schedule 1 to this Reassignment and shall be
incorporated into and made a part of this Reassignment and the Receivables
Purchase Agreement as of the Removal Date.
3. Conveyance of Receivables. (a) RFC does hereby sell,
transfer, assign, set over and otherwise convey to the Seller, without recourse
or representation (included those implied by law) on and after the Removal
Date, all right, title and interest of RFC in and to the Receivables now
existing and hereafter created in the Removed Accounts designated on Schedule 1
hereto, all monies due or to become due and all amounts received with respect
thereto, including all Recoveries related thereto, and all proceeds thereof.
(b) In connection with such sale, RFC agrees to execute and
deliver to the Seller on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables now existing and
hereafter created in the Removed Accounts designated hereby (which may be a
single termination statement with respect to all such Receivables) evidencing
the release by RFC of its lien on the Receivables in the Removed Accounts, and
meeting the requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such lien.
4. Acceptance by RFC. RFC hereby acknowledges that, prior to
or simultaneously with the execution and delivery of this Reassignment, the
Seller delivered to RFC the computer file or microfiche list represented by the
Seller to be as described in Section 2 of this Reassignment.
5. Representations and Warranties of the Seller. The Seller
hereby represents and warrants to RFC as of the Removal Date:
(a) Valid and Legally Binding Obligation. This Reassignment
constitutes a valid and legally binding obligation of the Seller enforceable
against the Seller in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors' rights in general and except
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity); and
(b) Selection Procedures. No selection procedures believed by
such Seller to be materially adverse to the interests of any outstanding Series
of Investor Certificates or any Enhancement Provider were utilized in selecting
the Removed Accounts designated hereby.
6. Conditions Precedent. The amendment of the Receivable
Purchase Agreement set forth in Section 7 hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following condition
precedent:
D-2
(a) Officer's Certificate. The Seller shall have delivered to
RFC an Officer's Certificate certifying that (i) on the Removal Date, all
requirements set forth in Section 13 of the Receivable Purchase Agreement for
designating Removed Accounts and reconveying the Receivables of such Removed
Accounts, whether now existing or hereafter created, have been satisfied, and
(ii) each of the representations and warranties made by the Seller in Section 5
hereof is true and correct as of the Removal Date. RFC may conclusively rely on
such Officer's Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so relying.
7. Amendment of the Receivable Purchase Agreement. The
Receivable Purchase Agreement is hereby amended to provide that all references
therein to the "Receivable Purchase Agreement," to "this Agreement" and
"herein" shall be deemed from and after the Removal Date to be a dual reference
to the Receivable Purchase Agreement as supplemented by this Reassignment.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions of the Receivable 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
a consent to noncompliance with any term or provision of the Receivable
Purchase Agreement.
8. Counterparts. This Reassignment 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,
D-3
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
as Seller
By
-----------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION,
as Purchaser
By
----------------------------------
Name:
Title:
D-4
Schedule 1
----------
to Reassignment
of Receivables
REMOVED ACCOUNTS
----------------
D-5
AMENDMENT NO. 1 TO RECEIVABLE PURCHASE AGREEMENT
AMENDMENT No. 1, dated as of September 12, 1994, to the Receivable
Purchase Agreement, dated as of June 30, 1992 (the "Agreement"), between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a corporation organized
under the laws of the State of New York, as Seller of the Receivables
("Seller"), and AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION, a Delaware
corporation, as Purchaser of the Receivables ("RFC"). Capitalized terms used
herein and not defined herein have the respective meanings assigned to them in
the Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 21(a) of the Agreement, the Agreement may
be amended from time to time by the Seller and RFC, without the consent of the
Trustee or any of the Investor Certificateholders, among other things, to add
any provisions to or change in any manner or eliminate any provisions of the
Agreement; provided, however, that (i) the Servicer shall have provided to the
Trustee an Officer's Certificate to the effect that such amendment will not
materially and adversely affect the interests of the Investor
Certificateholders, (ii) such amendment shall not, as evidenced by an Opinion
of Counsel satisfactory to the Trustee, cause certain adverse tax consequences
and (iii) the Rating Agencies confirm that such amendment will not result in
the reduction or withdrawal of the rating of any outstanding Series of Investor
Certificates;
WHEREAS, American Express Travel Related Services Company, Inc.
("TRS") and its affiliates, AMEX Life Assurance Company and American Centurion
Life Assurance Company (AMEX Life Assurance Company and American Centurion Life
Assurance Company and any other affiliates of American Express Company that
shall offer such program are hereinafter referred to as "Amex Life") offer an
annuity program called "Privileged Assets" to obligors with respect to American
Express Card accounts ("Cardmembers");
WHEREAS, Cardmembers who enroll in Privileged Assets enter into an
annuity contract with Amex Life pursuant to which such enrollees make voluntary
annuity contributions, which contributions do not constitute Receivables as
defined in the Pooling and Servicing Agreement or in the Agreement;
WHEREAS, Privileged Assets Billed Amounts are treated by TRS, as
Servicer under the Pooling and Servicing Agreement, in the same manner as
Receivables when they are billed to Cardmembers, in the same manner as
Collections when they are paid by Cardmembers and in the same manner as an
adjustment pursuant to Section 3.08(a) of the Pooling and Servicing Agreement
if they are not paid within 60 days of first being billed;
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the date
and year first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
as Seller
By:
------------------------------
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION
as Purchaser
By:
-------------------------------
Name:
Title:
The Trustee acknowledges that it has received an Officer's Certificate
and an Opinion of Counsel satisfactory to the Trustee pursuant to Section 21(a)
of the Agreement, copies of which are attached hereto. The Trustee also
acknowledges that it has furnished or caused to be furnished written
notification of the substance of this amendment to the Rating Agencies.
Attached hereto are copies of the confirmation of the Rating Agencies required
pursuant to Section 21(a).
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Name:
Title:
2
Amendment No. 2
to Receivable Purchase Agreement
AMENDMENT NO. 2, dated as of August 7, 1997 (the "Effective Date"), to
the RECEIVABLE PURCHASE AGREEMENT, dated as of June 30, 1992 (as amended and
otherwise supplemented prior to the Effective Date, the "Receivable Purchase
Agreement"), between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a
corporation organized and existing under the laws of the State of New York, as
the Seller of the Receivables (the "Seller"), and AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION, a corporation organized and existing under the laws of
the State of Delaware, as the Purchaser of the Receivables ("RFC").
Each capitalized term that is used, but not defined, herein shall have
the meaning specified in the Receivable Purchase Agreement.
WHEREAS, pursuant to Section 3.08 of the Pooling and Servicing
Agreement, the Servicer may from time to time, at the request of RFC, and
pursuant to the written instructions of RFC, adjust downward the amount of
Receivables in Adjusted Accounts (as such term is defined below) without
receiving any Collections therefor;
WHEREAS, the Seller and RFC wish to amend the Receivable Purchase
Agreement (in the manner set forth below) so that the Purchase Price payable by
RFC to the Seller pursuant to the Receivable Purchase Agreement shall not be
subject to a Credit Adjustment as a result of such adjustment downward of the
amount of any Receivables in Adjusted Accounts;
WHEREAS, pursuant to Section 21(a) of the Receivable Purchase
Agreement, such amendment may be effected without the consent of any of the
Investor Certificateholders;
NOW, THEREFORE, pursuant to Section 21(a) of the Receivable Purchase
Agreement, the Seller and RFC hereby agree as follows:
1. New Defined Terms. Paragraph C (entitled "Definitions") appearing on page
of the Receivable Purchase Agreement is hereby amended by inserting the
following text immediately after the first and only sentence thereof:
In addition, whenever used herein, the following capitalized terms
shall have the meanings set forth below:
(a) "Adjusted Accounts Report" shall mean the re ort of RFC,
substantially in the form of Exhibit E attached hereto, to be dated on
or before the Determination Date with respect to the prior Due Period,
pursuant to which RFC shall report or cause to be reported (i) the
account numbers and Receivable balance of the Adjusted Accounts on the
date (the "Adjustment Date") the Adjusted Account was adjusted to zero
without receiving any Collections therefor
with respect to Cycle 9 for the second preceding Due Period and Cycles
1 through 8 for the immediately preceding Due Period and (ii) the
Adjustment Date.
(b) "Adjusted Account" shall mean any Account the Receivables
of which have been adjusted to zero pursuant to Section 3.08 of the
Pooling and Servicing Agreement, but for reasons unrelated to rebates,
refunds, unauthorized charges, or billing errors to obligors, or
because such Receivable was created in respect of merchandise which
was refused or returned by an Obligor, in each case identified by
account number, Receivable balance and Adjustment Date, and reflected
in the books and records of the Servicer.
2. Amendment of Section 5 of the Receivable Purchase Agreement. As of
the Effective Date, Section 5 of the Receivable Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
Section 5. Adjustments to Purchase Price. Subject to the
exception described in the next sentence, (a) the Purchase Price shall
be adjusted (a "Credit Adjustment") with respect to any Receivable
adjusted as provided in subsection 3.08(a) of the Pooling and
Servicing Agreement, and (b) to the extent that RFC is required
thereunder to pay any amount to the Servicer for deposit into the
Collection Account, the Seller shall pay to RFC the amount required to
be paid to the Servicer thereunder. Notwithstanding any of the
foregoing, (a) a Credit Adjustment shall not be made with respect to
the adjustment to zero of any Receivables in an Adjusted Account
pursuant to subsection 3.08(a) of the Pooling and Servicing Agreement,
and (b) notwithstanding any adjustment to zero described in clause (a)
of this sentence, the Purchase Price shall remain unaffected and the
Seller shall not be obligated, under this Section 5 or any other
provision of this Agreement or the Pooling and Servicing Agreement, to
pay or otherwise credit any amount to RFC, the Servicer or the Trust
in connection with such adjustment. RFC shall provide or cause to be
provided to the Trustee, on or before each Determination Date, an
Adjusted Accounts Report for the immediately preceding Due Period.
3. New Exhibit E. As of the Effective Date, Exhibit E attached hereto
shall be added to the exhibit section of, and shall be deemed to constitute
Exhibit E to, the Receivable Purchase Agreement.
4. Conditions Precedent. As contemplated by Section 21(a) of the
Receivable Purchase Agreement, the effectiveness of this Amendment as of the
Effective Date shall be subject to the satisfaction of the following conditions
precedent:
(a) the Servicer shall have provided to the Trustee an Officer's
Certificate to the effect that the amendments to the Receivable
Purchase Agreement and the transactions contemplated hereby will not
materially and adversely affect any of the Investor
Certificateholders;
(b) each Rating Agency rating any of the Investor Certificates shall
have confirmed that the execution and delivery of this Amendment by
the parties
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hereto and the transactions contemplated hereby will not result in the
reduction or withdrawal of its rating of any of the Investor
Certificates; and
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Seller and RFC,
shall have delivered to the Trustee an opinion (which shall be
satisfactory to the Trustee) to the effect that the execution and
delivery of this Amendment by the parties hereto will not cause the
Trust to be characterized for U.S. federal income tax purposes as an
association taxable as a corporation or adversely affect the treatment
of any of the Investor Certificates as debt for U.S. federal income
tax purposes.
5. No Further Amendments. Except as expressly amended hereby, the
Receivable Purchase Agreement shall remain unmodified and in full force and
effect.
6. GOVERNRNG LAW. THIS AMENDMENT AND THE RECEIVABLE PURCHASE
AGREEMENT, AS AMENDED HEREBY, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT-OF-LAWS PROVISIONS; AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
7. Counterparts. This Amendment may be executed in counterparts, all
of which, together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective, duly authorized officers.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY,
INC.,
as Seller of the Receivables and as Sevicer
By:
-------------------------------------------
Name.
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION,
as Purchaser of the Receivables
By:
-------------------------------------------
Name:
Title
ACKNOWLEDGED AND ACCEPTED BY:
THE BANK OF NEW YORK,
as the Trustee
By:
-----------------------------
Name:
Title:
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Exhibit E
Adjusted Accounts Report
[Date]
We refer to (i) the Master Pooling and Servicing Agreement
dated as of June 30, 1992, as amended and supplemented (the "Pooling
Agreement"), among American Express Receivables Financing Corporation ("RFC"),
as Transferor, American Express Travel Related Services Company, Inc. ("TRS"),
as Servicer; and The Bank of New York, as Trustee, related to the American
Express Master Trust, and (ii) the Receivable Purchase Agreement dated as of
June 30, 1992, as amended and supplemented (the "RPA"), between RFC, as Buyer,
and TRS, as Seller. Each capitalized term used but not defined herein or in the
RPA shall have the meaning specified in the Pooling Agreement.
As contemplated by Section 5 of the RPA, we have enclosed
herewith a [list][microfiche] identifying certain Accounts (hereinafter
"Adjusted Accounts") by (i) account number and outstanding Receivables balance
as of the Adjustment Date and (ii) the Adjustment Date. Such Accounts have been
adjusted to zero on the books and records of the Servicer pursuant to Section
3.08(a) of the Pooling Agreement for reasons unrelated to rebates, refunds,
unauthorized charges, or billing errors to Obligors, or because such Receivable
was created in respect of merchandise which was refused or returned by an
Obligor.
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION, the Transferor
By:
--------------------------------------
Name:
Title: